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I 


LITTLE,  BROWN  &  CO.'S 

LAW    ADYERTISEH. 

112  'WASHIiraTON-    STnUET,  BOSTON. 

MAY,    1855. 


JUDGE     CURTIS'S 

EDITION  OP  THE 

DECISIONS 

OP    THE 

SUPREME  COURT  OP  THE  UNITED  STATES, 


Now  in  Press,  and  will  shortly  be  Published,  the  Decisions  of  the 
Supreme  Court  of  the  United  States,  with  Notes  and  a  Digest,  by 
Hon.  Benjamin  R.  Curtis,  one  of  the  Associate  Justices  of  the 
Court.  In  18  volumes  octavo.  Comprising  the  Cases  reported 
by  Dallas,  4  vols. ;  Cranch,  9  vols. ;  Wheaton,  12  vols. ; 
Peters,  16  vols.;  Howard,  16  vols.;  in  all  57  volumes. 


EXTRACT  FROM  THE  PREFACE. 

"  This  work  contains  the  decisions  of  the  Supreme  Court  of  the  United 
States.  TiJe  opinions  of  the  Court  are,  in  all  cases,  given  as  they  have  been 
printed  by  the  authorized  reporters,  after  correcting  such  errors  of  the  press 
or  of  citation  as  a  careful  examination  of  the  text  has  disclosed. 

"I  have  endeavored  to  give,  in  the  head-notes,  the  substance  of  each  deci- 
sion. They  are  designed  to  show  the  points  decided  by  the  Court,  not  the 
dicta  or  reasonings  of  the  Judges. 

"  The  statements  of  the  cases  have  been  made  as  brief  as  possible.  For 
many  yeai's,  it  has  been  the  habit  of  all  the  Judges  of  this  Court  to  set  forth 
in  their  opinions  the  facts  of  the  cases,  as  the  Court  viewed  them  in  making 
their  decision.  Such  a  statement,  when  complete,  renders  any  other  super- 
fluous. When  not  found  complete,  I  have  not  attempted  to  restate  the  whole 
case,  but  have  supphed,  in  the  report,  such  facts  or  documents  as  seemed  to 
me  to  be  wantin<T. 


"In  some  cases,  turning  upon  questions,  or  complicated  states  of  fact,  and 
not  involving  any  matter  of  law,  I  have  not  thought  it  necessary  to  encum- 
ber the  work  with  detailed  statements  of  evidence  which  no  one  would  find 
it  useful  to  recur  to.     These  instances,  however,  are  few. 

"  To  each  case  is  appended  a  note  referring  to  all  subsequent  decisions  in 
which  the  case  in  the  text  has  been  mentioned.  It  will  thus  be  easy  to  as- 
certain whether  a  decision  has  been  overruled,  doubted,  qualified,  explained, 
or  affii-med  ;  and  to  see  what  other  applications  have  been  made  of  the  same 
or  analogous  principles. 

"  The  paging  of  the  authorized  reporters  has  been  preserved  at  the  head 
of  each  case,  and  in  the  margin  of  each  page,  for  convenience  of  reference; 
the  reporters  being  designated  by  their  initials,  —  D.  for  Dallas,  C.  for 
Cranch,  W.  for  AVheaton,  P.  for  Peters,  H.  for  Howard. 

"  It  is  expected  that  all  the  decisions  of  the  Court,  down  to  the  close 
of  the  December  Term,  1854,  will  be  embraced  in  eighteen  volumes.  To 
these  will  be  added  a  Digest  of  all  the  decisions." 


We  ask  attention  to  the  following  approval  by  the  Members  of  the  Su- 
preme Court  of  the  United  States :  — 

"  We  approve  the  plan  of  Mr.  Justice  Curtis's  '  Decisions  of  the  Supreme 
Court  of  the  United  States,'  and  believe  that  its  execution  by  bim  will  be  of 
much  utility  to  the  legal  profession,  and  to  our  country." 

Roger  B.  Taxey,  Chief  Justice.         Petek  V.  Daniel,  Associate  Justice. 
John  McLean,  Associate  Justice.        Samuel  Nelson,  Associate  Justice. 
James  M.  Wayne,  Associate  Justice.  Robert  C.  Grier,  Associate  Justice. 
John  Catron,  Associate  Justice.         J.  A.  Campbell,  Associate  Justice. 

The  Old  Series  of  these  Reports  are  in  5  7  volume,  the  Catalogue  price  of 
which  is  S21 7.50.  This  Edition,  in  18  volumes,  will  be  offered  to  Subscribers 
at  the  low  price  of  $3  a  volume,  or  $54  the  set ;  thus  bringing  them  within 
the  means  of  all.  The  volumes  will  be  delivered  as  fast  as  issued,  and  it  is 
intended  that  the  whole  work  shall  be  completed  within  six  months  from  the 
present  date.  Vols.  I.  II.  III.  are  nearly  ready  for  publication.  Those  wish- 
ing to  subscribe  will  please  send  in  their  names  to  the  Publishers  as  early  as 
possible. 


REPUBLICATION    OF   THE 

ENGLISH   REPORTS,   IN   FULL. 

BY   LITTLE,    BRO^VN  &   CO. 

Containing  Reports  of  all  the  Cases  before  the  House  of  Lords,  Privy 
Council,  the  Lord  Chancellor,  the  High  Court  of  Appeal  in  Chan- 
cery, all  the  Common-Law  Courts,  the  Court  of  Criminal  Appeal, 
and  the  Admiralty  and  Ecclesiastical  Courts. 

The  Publishers  of  this  Series  of  the  English  Law  and  Equity  Reports  in- 
vite the  attention  of  the  Profession  to  the  following  statements,  showing  the 
advantages  which  they  possess  over  all  others  :  — 

I.  They  are  the  only  reprints  which  furnish  all  the  cases  decided  in  their 
respective  courts.     The  third  volume  of  Ellis  and  Blackburn,  issued  from 


the  Philadelphia  press,  professes  to  give  the  decisions  of  the  Queen's  Bench 
in  Hilary,  Easter,  and  Trinity  Terms,  1854 ;  but  it  contains  only  eighty- 
six  cases  out  of  one  hundred  and  twexty-oxe,  all  oficJuch  trill  be  found 
i/i  the  Law  and  Equity  Reports.  Many  of  the  cases  omitted  are  among  the 
most  important  decided  in  that  period.  The  Philadelphia  reprint  of  the  14th 
Common  Bench,  jnirports  to  contain  the  cases  from  Michaelmas  Term,  1853, 
to  Easter  Term,  1854,  inclusive;  but  is  gives  only  sixty  cases  out  of  eighty- 
three.  For  the  remaining  cases,  the  American  laiojer  must  look  to  the  Law 
and  Equity  Reports.  The  Exchequer  Reports,  in  like  manner,  will  be  found 
incomplete.  And  this  incompleteness  of  the  Philadelphia  series  increases 
from  year  to  year ;  for  the  proportion  of  cases  omitted  is  much  greater  in 
the  recent  volumes  than  in  the  jirevious  ones. 

II.  The  character  of  the  Law  and  Equity  Reports  will  bear  the  most  rigid 
comparison  with  the  Philadelphia  series.  They  have  a  much  larger  circula- 
tion in  England,  and  are  as  freely  and  confidently  cited.  The  Law  Journal 
and  Jurist  are  cited  833  times  in  "  Shelford  on  Railways;"  while  Meeson 
and  Welsley,  the  Queen's  Bench,  Common  Bench,  and  Exchequer  Reports 
are  collectively  cited  but  455  times.  In  "Hill  on  Trustees,"  the  Law  Joun- 
nal.  Jurist,  and  Law  and  Equity  Reports  are  cited  846  times.  In  "  Saun- 
ders's Pleading  and  Evidence,"  the  Law  Journal  and  Jurist  are  cited  1871 
times ;  while  the  Queen's  Bench,  Common  Bench,  and  Exchequer  Reports 
are  collectively  cited  but  1444  times.  And  an  examination  of  any  receyit 
English  laic-hooh  will  show  the  same  high  appreciation  of  the  j^uhlications  from 
ichich  the  Law  and  Equity  Reports  are  printed. 

III.  In  these  Reports,  the  decisions  are  generally  given  several  months 
in  advance  of  the  Philadelphia  reprints.  Even  in  the  volumes  which  are 
announced  as  in  advance  of  our  reports,  it  will  he  found  that  a  large  propor- 
tion of  the  cases  had  become  familiar  to  the  profession,  through  the  Law  and 
Equity  Reports,  before  their  publication  at  Philadelphia.  But  by  the  reduc- 
tion of  matter  which  the  omission  of  the  Chancery  cases  in  the  inferior  courts 
will  cause,  we  shall  be  able  hereafter  to  publish  the  common-law  cases  seve- 
ral months  earlier  than  heretofore.  The  28th  volume,  containing  the  cases 
in  Michaelmas  Term,  1854,  and  a  part  of  Hilary  Term,  1855,  will  be  pub- 
lished in  July  next,  embracing  the  cases  of  the  first  part  of  4th  Ellis  and 
Blackburn  ;  Part  Second  of  15  Common  Bench,  and  Part  Third  of  10th  Ex- 
chequer Reports,  and  being  nearly  a  year  in  advance  of  their  publication  in 
the  Philadelphia  series.  Thereafter,  tee  intend  to  publish  the  cases  of  each 
term  tvithin  four  months  from  the  rising  of  the  courts. 

IV.  In  addition  to  the  complete  reports  of  the  Common  Law  Courts,  this 
series  will  furnish  the  cases  before  the  House  of  Lords,  the  Privy  Council, 
the  Lord  Chancellor,  the  High  Court  of  Appeal  in  Chancery,  the  Admiralty, 
and  Ecclesiastical  Courts ;  making  the  amount  of  matter  more  than  double 
that  furnished  in  the  Philadelphia  series. 

V.  The  Law  and  Equity  Reports  are  sold  at  S2  per  volume,  which  will 
amount  to  S8  per  year  hereafter.  Considering  the  amount  of  matter  which 
they  contain  their  cost  is  less  than  one  half  that  of  the  Philadelphia  series. 

These  Reports  are  now  regularly  digested  in  our  Annual  LTnited  States 
Digest,  which  thus  embraces  an  Annual  Digest  of  the  whole  English  and 
American  Law.  "We  shall,  upon  the  completion  of  Volume  XXX.,  publish 
a  separate  Digest  of  these  Reports  up  to  that  time. 

For  the  greater  convenience  of  the  profession,  we  shall  also  hereafter 
publish  a  table  of  all  the  cases  in  these  Reports,  with  a  reference  to  the 
volume  and  page  of  every  other  series  Avhere  the  same  case  may  be  found. 

Vols.  I.  to  XXVI.,  now  ready  for  delivery,  at  $2  per  volume,  to  perma- 
nent subscribers. 


^nrk0  lUreittlij  ^^ulilisjieh 


35mi)eatou*i5  Kutcrnational  5latD. 

ELEMENTS  OF  INTERNATIONAL  LAW.  By  the  late  Hon. 
Henry  Wiieaton,  LL.  T>.  Sixth  Edition,  revised,  annotated, 
and  bronojht  down  to  the  present  time,  with  a  Biographical  Notice 
of  Mr.  "Wheaton,  and  an  Account  of  the  Diplomatic  Transactions 
in  which  he  was  concerned.  By  Hon.  "\Vm.  Beach  Lawrence, 
formerly  Charge  d' Affaires  at  London.     In  one  volume.     8vo. 


^ntjell  on  Himitntions. 

TREATISE  ON  THE  LIMITATIONS  of  Actions  at  Law 
and  Suits  in  Equity  and  Admiralty,  with  an  Appendix  containing 
the  American  and  English  Statutes  of  Limitations,  and  embracing 
the  latest  Acts  on  the  subject.  By  Joseph  K.  Angell,  Esq. 
Third  Edition,  revised  and  greatly  enlarged.  By  John  Wilder 
May,  Esq.     1  vol.  8vo.     $5.00. 

Judge  Lipscomb,  in  giving  the  opinion  of  the  Supreme  Court  of  Texas,  in  1854, 
(11  Texas  Eep.  524,)  pronounced  this  work  the  "standard  work  on  Limitations." 

"  There  is  high  authority  for  saying  that  this  is  much  the  best  treatise  on  the 
very  important  subject  to  which  it  relates;  Lord  Brougham  having  pronounced 
that  opinion  of  the  first  edition,  which  has  subsequently  been  much  enlarged  and 
improved.  All  the  learning  scattered  through  the  English  and  American  reports 
in  regard  to  the  construction  and  effect  of  the  various  statutes  of  limitations  appears 
to  have  been  diligently  compiled  and  systematically  arranged.  The  labors  of  Mr. 
Jlay  have  considerably  increased  the  value  of  the  work,  and  will  cause  this  edi- 
tion to  supersede  the  previous  ones." —  N.  Y.  Times. 

"  The  merits  of  this  treatise,  in  its  original  form,  are  well  known.  Upon  its  first 
appearance  it  took  rank  among  our  standard  treatises,  and  has  never  been  super- 
seded —  as  too  many  very  carefully  written  law  books  are  —  by  other  works  em- 
bodying later  views  and  doctrines. 

"  The  improvements  in  the  third  edition  consist  in  Mr.  May's  annotations  and 
references  to  the  latest  authorities.  The  original  text  of  Angell  stands,  we  be- 
lieve, unaltered ;  but  in  notes  appended  to  it  Mr.  May  has  performed  the  useful 
service  of  referring,  under  the  proper  heads,  the  new  cases  decided  since  the  ori- 
ginal publication;  often  quoting  them  at  length.  The  work  is  thus  enriched  by 
the  addition  of  upwards  of  seven  hundred  cases,  the  annotations  enlarging  the 
work  about  one  third,  the  number  of  pages  being  now  about  eight  hundred. 

"In  the  Appendix,  which  contains  the  statutes  of  limitations  of  the  various 
States,  we  note  the  addition  of  the  statutes  of  Cahfornia,  Florida,  Iowa,  and  Texas, 
not  embraced  in  the  previous  editions." — N.  Y.  Commercial  Advertiser. 


CASES  RELATING  TO  THE  LAW  OF  RAILWAYS,  decided 
in  the  Supreme  Court  of  the  United  States,  and  in  the  Courts 
of  the  several  States,  with  Notes.  By  Chauncey  Smith  and 
Samuel  W.  Bates,  Esqrs.,  Counsellors  at  Law.  Vol.  I.  8vo. 
$4.50. 


CASES  RELATING  TO  RAILWAYS  AND  CANALS,  argued 
and  adjudged  in  the  Courts  of  Law  and  Equity,  from  1835  to 
1852.  Edited  by  Samuel  W.  Bates  and  Chauxcey  Smith, 
Esquires.     6  vols.     8vo.     $24.00. 

"  Th9  present  edition  of  the  '  English  Railway  Cases '  embodies  a  collection  of 
all  decisions  upon  that  subject  since  1835.  An  appendix  to  the  first  volume  con- 
tains all  the  cases  prior  to  that  date  which  bear  upon  American  Railway  Law. 
Editorial  notes  give  the  information  requisite  to  enable  American  readers  to  enter 
into  the  bearings  of  each  case.  The  'American  Railway  Cases '  contains  the 
entire  body  of  decisions  upon  the  subject,  in  this  country.  The  two  works  include 
nearly  one  thousand  cases;  and  thus  form  a  very  complete  library  upon  their  im- 
portant topic. 

"  We  need  say  nothing  of  the  value  of  these  -works  to  the  lawyer  whose  clients 
are  directors  of  companies;  or  stockholders  in  them;  or  travel  on  their  roads  or 
send  freight  by  them ;  or  have  their  lots  cut  through  by  new  routes ;  or  are  liable 
in  any  way  to' have  dealings  with  railroad  interests.  We  leave  such  a  lawyer  to 
look  "at  the  books  themselves,  while  we  respectfully  inquire  whether  such  a  col- 
lection of  cases  would  not  be  a  suitable  addition  to  the  library  of  the  Board  Rooms 
of  some  of  our  companies."  —  N.  Y.  Times. 


parsons  on  Contracts, 

A  TREATISE  on  tlie  Law  of  Contracts.  By  Hon.  Theophilus 
Parsons,  Professor  in  Dane  Law  College,  Cambridge,  Mass. 
Vol.  L     8vo.     $5.50. 


IP^illijjs  on  )Instttance» 

A  TREATISE  ON  THE  LAW  OF  INSURANCE.  By  Hon. 
WiLLARD  Phillips.  Fourth  Edition,  enlarged.  2  vols.  8vo. 
$10.00. 


P^otoai'tr's  i^cports. 

REPORTS  OF  CASES  argued  and  determined  in  the  Supreme 
Court  of  the  United  States.  By  Benjamin  C.  Howard.  Vol. 
XVL     8vo.     $5.50. 

"  Next  to  the  reports  of  the  Courts  of  his  own  State,  those  of  the  United  States 
Supreme  Court  are,  in  many  respects,  the  most  important  and  valuable  to  the 
practising  lawyer.  If  the  decisions  of  that  Court  do  not,  perhaps,  embrace  so  wide 
a,  range  of  questions,  yet  their  authority  in  our  State  courts  is  of  course  higher 
than  those  of  any  other  tribunals.  The  value  of  these  Reports  is  increased  by  the 
thorough  manner  in  which  they  are  prepared."  —  N.  Y.  Times. 

"  These  official  reports  of  the  decisions  of  the  highest  Court  known  to  our  law, 
need  no  commendation  from  critic  or  reviewer.  The  bar  knows  their  value,  and 
the  world  has  learned  to  respect  the  learning,  the  integrity,  and  the  sagacity  of 
our  federal  judiciary."  —  N.  Y.  Commercial  Advertiser. 


^ncjcU  on  iFire  antr  SLiCe  insurance. 

A  TREATISE  on  the  Law  of  Fire  and  Life  Insurance.  WUh  an 
Appendix,  containing  Forms,  Tables,  &c.  By  Joseph  Iv.  An- 
gell,  Esq.     1  vol.     8vo.     $5.00. 


Brafte  on  ^ttacljment, 

A  TREATISE  ON  THE  LAW  OF  SUITS  BY  ATTACHMENT 

in  the  United  States.      By  Charles  D.  Drake,  Esq.,  of  St. 
Louis.     1  vol.     8vo.    $4.50. 

"  It  is  now  about  six  weeks  since  I  had  the  pleasure  to  receive  the  copv  you 
were  kind  enough  to  send  me  of  your  work  on  the  Law  of  Suits  by  Attachment, 
but  it  is  only  within  the  last  few  days  that  I  have  found  time  to  examine  it  with 
sufficient  care  to  enable  me  to  acquaint  myself  with  its  characteristics.  I  expected 
to  find  the  several  topics  embraced  by  the  general  subject  logically  arranged,  and 
treated  with  ability,  perspicuity,  and"  learning,  and  it 'affords  me  sincere  pleasure 
to  assure  you  that  this  expectation  has  not  been  disappointed.  It  is  very  clear 
that  such  a  work  was  needed,  .and  while  it  cannot  fail  to  prove  eminently  useful 
to  your  professional  brethren  throughout  the  Union,  I  trust  it  will  bring  to  its 
author  the  rewards  to  which  it  appears  to  me  justly  to  entitle  him."  —  Letter  from 
Hon.  A.  ConMing,  late  U.  S.  Judrje  for  the  Northern  District  of  New  York. 

"I  am  much  pleased  with  your  work  on  the  Law  of  Attachments.  It  is  very 
creditable  to  you,  and  will  be  found  a  valuable  acquisition  to  the  profession.  You 
have  treated  the  subject  with  clearness  and  ability,  and  by  your  references  vou 
have  sustained  your  views  by  the  highest  authori'ties." —  ie«e?- /row  ifon.  Jo/ire 
McLean,  Associate  Justice  of  the  Supreme  Court  of  the  United  States. 


MoWu  l^attnt  Qtantn. 

A  COLLECTION  OF  PATENT  CASES  decided  in  the  Supreme 

and  Circuit  Courts  of  the  United  States,  from  their  organization 

to  the  year  1850,  with  Notes,  Index,  &c.     By  James  B.  Robb, 

Esq.     2  vols.     8vo.     $10.00. 

"  Mr.  Robb's  book  is  a  most  welcome  addition  to  the  libraries  of  inventors  and 
the  owners  of  American  patents.  The  collection  is  much  more  complete  than 
any  similar  reports  which  we  have  in  this  branch  of  the  law  in  England."  — Prac- 
tical Mechanics'  Journal. 


mniitti  States  ^Session  aatos,  1854-55. 

THE  STATUTES  AT  LARGE  and  Treaties  of  the  U.  S.  of 
America.  Commencing  with  the  Second  Session  of  the  Thirty- 
third  Congress,  1854  -  55  —  carefully  collated  with  the  originals 
at  Washington.  Published  by  authority  of  Congress.  Edited 
by  George  Minot,  Esq.     Royal  8vo.,  stitched  $1.00. 


AND    PREPARING    FOR   PUBLICATION. 


PARSONS  ON  COMMERCIAL    LAW. 

THE  PRINCIPLES  OF  COMMERCIAL  LAW.  By  Hon. 
Theophilus  Parsons,  LL.  D.,  Dane  Professor  in  the  Law 
School  of  Harvard  University,  in  Cambridge.     2  vols.     8vo. 

The  principal  topics  of  the  first  volume  will  be  the  Origin  and  History 
of  the  Law  Merchant ;  the  Law  of  Partnership ;  of  Sales ;  of  Agency ; 
of  Bills  and  Notes;  and  of  Marine  Insurance.  The  second  volume  -will 
contain  the  Law  of  Shipping,  and  the  Law  and  Practice  of  Admiralty. 


BISHOP    ON   CRIMINAL    LAW. 

COMMENTARIES  OX  CRIMINAL  LAW.  By  Joel  Pren- 
tiss Bishop,  Esq.,  Author  of  "  Commentaries  on  the  Law  of  Mar- 
riage and  Divorce."  The  first  volume  to  be  a  complete  elementary 
Treatise  of  itself. 

This  -work  is  intended  to  embrace  the  entire  field  of  English  and 
American  Criminal  Jurisprudence,  traversed  by  new  paths.  It  will  be 
both  elementary  and  practical ;  adapted  alike  to  the  use  of  the  student, 
the  magistrate,  and  the  practising  lawyer ;  and  on  important  points,  will 
contain  citations  of  all  the  English  and  American  cases. 

AMERICAN  RAILROAD  CASES. 

A  COMPLETE  COLLECTION  OF  THE  AMERICAN  CASES 
relating  to  the  Rights,  Duties,  and  Liabilities  of  Railroads,  with 
Notes  and  References  to  the  English  and  American  Railway, 
Canal,  and  Turnpike  Cases.  By  Chauxcey  Smith  and  S.  W. 
Bates,  Esquires.     2  vols.     8vo.     Vol.  I.  now  ready. 

PARSONS   ON   CONTRACTS. 

A  TREATISE  ON  THE  LAW  OF  CONTRACTS.  By  Hon. 
Theophilus  Parsons,  Professor  in  Dane  Law  College,  Cam- 
bridge, Mass.  In  2  vols.  8vo.  Vol.  I.  now  ready.  Vol.  II. 
will  be  ready  in  June. 

THE   LAW   OF   ADMIRALTY. 

LEADING  CASES  IN  ADMIRALTY  AND  SHIPPING,  with 
Notes  and  Commentaries.  By  a  Member  of  the  Suffolk  Bar. 
1  vol.     8vo. 

BLACKBURN  ON  THE  CONTRACT  OF  SALE. 

A  TREATISE  ON  THE  LAW  OF  SALES.  By  C.  Black- 
burn. With  Additions,  Notes,  and  References.  By  William 
P.  Wells,  Esq.    1  vol.     8vo. 

FRAUDS. 

A  TREATISE  ON  THE  CONSTRUCTION  OF  THE  STA- 
TUTE OF  FRAUDS.  By  Causten  Browne,  Esq.,  of  the 
Suffolk  Bar.     1  vol.     8vo. 

ARBITRATION. 

ARBITRATION,  at  Common  Law,  in  Equity,  and  under  the  Sta- 
tutes of  the  States  of  the  United  States.  By  Edward  G.  Lor- 
ING,  Esq.,  of  the  Suffolk  Bar. 

VENDORS  AND  PURCHASERS. 

THE  LAW  OF  VENDORS  AND  PURCHASERS  OF  REAL 
PROPERTY.     By  Francis  Hilliard,  Esq.     2  vols.    8vo. 


8 

HUSBAND  AND  WIFE. 

THE  PRINCIPLE  AND  RULES  OF  LAW  regulating  the  Pro- 
perty of  Husband  and  Wife ;  and  Civil  Actions  therefor.  By 
Edwaud  G.  Loring,  Esq. 

PRECEDENTS  OF  INDICTMENTS. 

PRECEDENTS  OF  INDICTMENTS,  Special  Pleas,  &c.,  adapted 
to  American  Practice,  with  Notes,  containing  the  Law  of  Crimi- 
nal Pleading.  By  Charles  R.  Train,  and  F.  F.  Heard,  Esqrs., 
of  the  Middlesex  Bar.     1  vol.      8vo.     Nearly  ready. 

HIGHWAYS. 

A  TREATISE  ON  THE  LAW  OF  HIGHWAYS,  Dedication 
of.  Travellers,  Travelling,  &c.  By  Joseph  K.  Angell,  Esq. 
1  vol.     8vo. 

ENGLISH  REPORTS. 

LAW  AND  EQUITY  REPORTS.  The  Common  Law,  Equity, 
Criminal,  Admiralty,  and  Ecclesiastical  Reports  combined.  Edited 
by  Edmund  H.  Bennett  and  Chauncey  Smith,  Esqrs.  Vol. 
XXVII. 

GRAY'S  REPORTS. 

REPORTS  OF  CASES  argued  and  determined  in  the  Supreme 
Judicial  Court  of  Massachusetts.  By  Horace  Gray,  Jr.  1  vol. 
8vo. 

CRIMINAL   LAW. 

A  COLLECTION  OF  LEADING  CASES  in  various  branches  of 
the  Criminal  Law,  with  Notes.  By  B.  F.  Butler  and  F.  F. 
Heard,  Esquires.     2  vols.     8vo. 

WALKER'S   INTRODUCTION. 

INTRODUCTION   TO   COMMON  LAW.      By  Hon.  Timothy 

Walker,  of  Cincinnati.      Third  edition,  revised.     1  vol.       8vo. 
% 

REAL   PROPERTY. 

LEADING  CASES  in  the  Law  relating  to  Real  Property,  Con- 
veyancing, and  the  Construction  of  Wills.  By  Owen  D.  Tudor, 
Esq.,  of  tlie  Middle  Temple.  With  Notes,  by  a  Member  of  the 
Suffolk  Bar.     1  vol.      8vo. 

HOWARD'S   REPORTS. 

REPORTS  OF  CASES  argued  and  determined  in  the  Supreme 
Court  of  the  United  States.  By  Benjamin  C.  Howard.  Vol. 
XVII. 


THE 


LAW   OF    CONTRACTS 


BY 


THEOPHILUS  PARSONS,  LL.  D. 

DANE   PROFESSOR   OF   LAW   IN   HARVARD   UNIVERSITY,   AT    CAMBRIDGE. 


VOLUME    I. 


SECOND     EDITION. 


BOSTON: 
LITTLE,    BROWN    AND    COMPANY 


Entered  according  to  Act  of  Congress,  in  the  year  1855, 

By  Theophilus  Parsons, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

T 


EIVERSIDE,       CAMBRIDGE: 
PKINTED    BY    II.   O.    HOUGHTON  AND    COMPANY. 


WILLIAM    H.   PRESCOTT,   ESQ.,     • 

THE    HISTORIAN    OF    SPAIN,    MEXICO,    AND    PERU. 

I  MIGHT,  perhaps,  find  some  excuse  for  dedicating  this 
work  to  you,  in  the  natural  desire  of  connecting  my  own 
labors  with  those  which  have  won  for  you  and  for  our  coun- 
try so  much  renown.  And  even  more  in  the  friendship 
which  began  so  long  ago  we  cannot  remember  its  beginning  ; 
and  in  the  long  yeairs  that  through  childhood,  youth,  and 
manhood,  have  brought  us  upon  the  confines  of  age,  if  not 
beyond  thein,  has  never  for  a  moment  been  broken. 

But  neither  of  these  is  my  principal  motive.  That,  I  must 
confess  to  be,  a  strong  and  irrepressible  desire  to  speak  of 
your  father ;  to  express,  however  imperfectly,  my  gratitude 
to  him  ;  and  to  execute,  even  in  this  slight  degree,  the  pur- 
pose I  have  long  had,  of  putting  on  record  my  testimony 
to  the  excellence  of  one  who  stood  for  many  years  at  the 
head  of  his  profession,  who  was  my  master- during  my  ap- 
prenticeship to  the  law,  and  ever  after  my  revered  instructor 
and  invaluable  friend. 

It  was  in  1815  that  I  entered  his  office  as  a  student.  I 
had  been  accustomed  all  my  life  to  see  him  often,  and  hear 
him  often  spoken  of,  for  our  families  were  intimate,  and  he 
was  among  my  father's  most  valued  friends ;  and  J  had 
always  heard  him  mentioned  with  a  kind  and  degree  of 
respect  that  seemed  to  be  paid  to  him  alone.  I  knew  that 
he  had  held  the  highest  place  in  his  profession  for  some 
years ;  but  the  regard  and  reverence  generally  accorded  to 
him  were  more  than  any  mere  professional  success  could 


1  «->"i..  *„^t  •) ;..'? 


IV  DEDICATION. 

win.  When  I  entered  his  office,  he  had  already  given  up  a 
large  part  of  his  business.  He  did  not  go  often  into  court; 
but  I  heard  him  in  some  important  cases,  and  was  a  con- 
stant observer  of  the  relations  between  him  and  his  nume- 
rous clients.  And  it  was  not  long  before  I  learned  the 
grounds  of  his  high  social  and  professional  position. 

In  the  first  place  let  me  speak  of  his  judgment  and  saga- 
city. I  cannot  conceive  of  any  person  possessing,  in  greater 
perfection,  that  admirable  thing  we  call  good  sense.  I  doubt 
whether,  in  his  long  and  active  life,  he  ever  made  any  one 
mistake  of  importance.  "Whoever  employed  him  in  any 
business,  soon  saw  that  the  wisest  thing  that  could  be  done 
in  his  case,  and  at  every  step  of  it,  was  always  the  very  thing 
that  was  done.  Hence  a  confidence  without  limit  was  re- 
posed in  his  opinion;  and  his  advice  was  accepted  and  fol- 
lowed by  all  who  received  it,  as  if  it  made  farther  inquiry  or 
consideration  wholly  unnecessary. 

The  next  quality  I  would  mention  was  a  kindred  and  con- 
nected one  ;  I  mean  his  perfect  truthfulness.  It  seemed  as  if 
he  could  not  deceive  ;  and  if  he  had  the  faculty  originally  he 
must  have  lost  it  by  non  user.  It  made  no  difference  on  which 
side  of  a  question  the  party  propounding  it  to  him  stood  ; 
for  his  answer  was  to  the  question,  and  not  to  the  man. 
Whether  he  dealt  with  a  client,  an  adverse  party,  a  witness, 
the  jury,  or  the  court,  he  dealt  with  them  all,  honestly.  He 
had,  what  I  am  sorry  to  call  the  rare  quality,  of  loving  truth 
so  well,  that  his  view  of  it  was  not  to  be  distorted  or  ob- 
structed either  by  any  interest  or  any  feeling  of  his  own  or 
of  those  whom  he  represented,  or  by  any  disturbing  influences 
of  circumstances  or  position. 

I  speak  last  of  his  learning,  although  this  was  perhaps 
more  frequently  remarked  upon  than  his  moral  qualities, 
however  deeply  they  were  felt.  He  had  passed  many  years 
in  laborious  and  well-directed  study ;  for  he  was  led  to  this, 


DEDICATION.  V 

both  by  his  sense  of  duty  to  his  clients,  and  by  his  sagacity, 
which  told  him  that  here  he  must  find  the  means  of  sound 
judgment  and  usefulness  and  success ;  and  also  by  the  love 
of  his  profession  and  of  the  law  as  a  science.  For  many 
years  after  he  had  withdrawn  from  the  profession,  both  as 
advocate  and  chamber-counsel,  he  still  continued  his  legal 
studies;  and  often  when  I  have  called  upon  him  and  stated 
some  difficult  question  which  had  occurred  in  my  practice,  he 
would  —  not  for  a  fee — but  in  his  kindness  to  me,  and  his 
love  of  the  law,  enter  upon  the  investigation  with  the  zeal  of 
earlier  days,  and  give  me  the  whole  benefit  of  his  vast  know- 
ledge and  his  unerring  sagacity. 

To  these  qualities  I  must  add  that  of  universal  kindness 
and  unfailing  courtesy.  And  certainly  I  have  given  good 
reasons  why  he  held  so  long  the  headship  of  a  profession  in 
which  it  is  not  easy  to  climb  to  the  high  places,  and  very 
difficult  to  hold  them ;  and  also,  why,  outside  of  his  profes- 
sion and  by  society  at  large,  he  was  venerated  during  his 
long  life  as  few  men  among  us  have  ever  been.  Let  me 
add  that,  while  he  manifested,  wherever  in  the  conduct  of 
his  affairs  it  was  needed,  the  firmness  and  fearlessness  that 
he  inherited  from  a  father  who  stood  like  a  tower  of  strength 
in  command  of  the  American  forces  at  Bunker  Hill,  he  was 
ever,  and  remarkably,  unassuming,  retiring,  and  modest.  It 
is  difficult  to  believe  that  he  could  not  measure  his  own  suc- 
cess, or  that  he  did  not  know  his  high  position  ;  but  no  one 
ever  heard  a  word  or  a  tone  from  him  which  indicated  such 
knowledge. 

He  was  not  eloquent,  and  never,  to  my  knowledge,  at- 
tempted to  be ;  and  yet  he  was  a  most  successful  advocate. 
It  was  his  purpose  and  endeavor  to  do  for  every  client,  and 
in  every  case,  all  that  could  be  done  by  learning,  sense, 
industry,  and  honesty ;  this  he  knew  he  could  do,  and  did. 
And  more  than  this  he  had  no  desire  to  do. 

a* 


VI  DEDICATION. 

Such  was  William  Prescott.  When  he  died  in  1844, 
at  the  age  of  82,  I  had  known  him  intimately  for  twenty- 
nine  years,  and  had  known  of  him  many  more.  And  I 
never  yet  heard  a  word  spoken,  and  I  never  heard  of  a  word 
spoken,  to  his  disparagement  or  dispraise,  during  his  long 
life  or  since  its  close,  by  any  person  whomsoever;  not  even 
have  I  heard  the  "but"  or  "if"  with  which  many  indulge 
themselves  in  qualifying  and  clouding  the  commendation 
they  cannot  but  render.  He  has  left  behind  him  no  brilliant 
speeches  to  be  remembered  and  quoted ;  no  books  in  which 
the  fruits  of  his  learning  and  wisdom  were  gathered  and 
preserved ;  and  they  who  knew  him  are  passing  away,  and 
already  his  reputation  is  becoming  traditional.  And  very 
glad  shall  I  be,  if,  by  this  slight  memorial,  I  may,  for  a 
single  moment,  arrest  the  waves  of  time,  in  their  advancing 
flow  over  the  sands  in  which  are  written  his  name,  and  the 
names  of  many  other  of  our  best  and  greatest. 

THEOPHILUS   PARSONS. 
Cambridge, 
October,  1853. 


PREFACE 


TO    THE    FIRST   EDITION. 


The  title  of  the  thirtieth  chapter  of  the  Second  Book 
of  Blackstone's  Commentaries  is,  '•  Of  title  by  gift,  grant, 
and  contracts  And  in  no  other  chapter  does  he  treat  of 
the  law  of  contracts  under  that  name.  Since  the  publi- 
cation of  that  work,  many  treatises  on  this  subject  have 
been  published  in  England  and  in  this  country  ;  some  of 
them  are  large  volumes,  and  the  latest  are  the  largest. 
But  I  have  thought  that  a  work  of  still  wider  extent ; 
that  is,  embracing  some  topics  not  usually  presented  in 
these  treatises,  and  exhibiting  the  principles  of  law  upon 
many  subjects  more  fully,  would  be  useful  to  the  stu- 
dent and  the  practitioner.  There  is,  perhaps,  no  definite 
standard  by  which  we  may  determine  what,  and  how 
much,  a  work  on  this  branch  of  the  law  should  contain. 
The  law  of  contracts  may  be  said  to  include,  directly  or 
indirectl}^,  almost  all  the  law  administered  in  our  courts. 
But  the  line  must  be  drawn  somewhere  ;  and  I  hope  it 
will  be  found  that  1  have  not  wandered  too  far  from  the 
proper  limits  of  m}'-  subject,  in  my  desire  to  present  it 
fully,  and  to  give  to  all  its  principles  the  light  they  re- 
flect upon  each  other. 

This  work  is  larger  than  any  of  its  predecessors ; 
but,  for  finding  room  in  the  text  for  all  I  wished  to  say 


VIU  PREFACE. 

in  it,  I  have  relied  mainly  on  a  peculiarity  in  its  plan ; 
that  is,  on  the  rigorous  exclusion  from  the  text,  of  all 
cases.  I  have  endeavored  to  state  in  the  text  the  prin- 
ciples and  rules  of  the  law,  as  accurately,  as  compactly, 
and  as  logically  as  I  could  ;  and  in  the  notes,  and  there 
only,  I  have  given  my  authorities.  Such  was  my  rule  ; 
and  the  exceptions  to  it  are  few ;  and  ni}''  reason  for  it, 
in  addition  to  the  saving  of  space,  was  this.  If  the  text 
of  any  book  is  composed,  in  any  considerable  degree,  of 
selected  cases,  whoever  uses  the  book  (whether  in  learn- 
ing or  in  practising  the  law)  will  naturally  suppose  that 
these  cases  contain  the  prevailing,  if  not  the  whole,  au- 
thority on  that  topic,  for  they  are  selected  and  presented 
for  that  very  purpose ;  but,  if  he  relies  upon  them,  he 
may  be  afterwards  surprised  by  the  exhibition  of  other 
cases,  equally  authoritative,  but  leading  to  opposite  con- 
clusions. These  also  may  have  been  referred  to  by  name 
in  the  notes,  and  even  the  word  "  contra "  affixed  to 
them,  but  perhaps  they  are  not  within  the  reader's  reach, 
or  he  has  not  time  to  examine  them ;  and,  at  all  events, 
nothing  which  is  said  of  them  in  a  foot-note,  would 
place  them  on  an  equality  with  their  favored  opponents. 
Undoubtedly,  a  text-writer  upon  any  branch  of  the  law 
has  strong  inducements  to  make  up  his  book  by  quota- 
tion from  authorities.  Not  merely  because  it  fills  a  page 
and  disposes  of  a  topic  with  little  labor,  but  because 
on  all  obscure  or  controverted  questions  it  is  easy,  by 
ample  quotation,  to  seem  to  state  the  law,  and  yet  avoid 
both  the  toil  of  investigation,  and  the  responsibility  of 
decision. 


PREFACE.  IX 

I  have  endeavored  to  state  in  the  text  "what  I  think 
to  be  the  law ;  and  in  the  notes  I  have  endeavored  to 
enable  the  reader  to  judge  for  himself  whether  I  am 
right.  Cases  which  are  only  direct  authorities  for  the 
statements  in  the  text  are  generally  referred  to  only  by 
name  and  place.  If  they  illustrate  these  statements, 
still  more  if  they  modify  them,  or  contradict  them, 
they  are  given  by  quotation,  or  abstract,  at  greater 
or  less  length,  as  their  respective  importance  seemed  to 
demand.  Indeed,  I  have  wished  to  enable  the  reader  to 
investigate  a  question  as  he  would  do  it  in  a  complete 
library,  so  far  as  a  single  work  of  moderate  size  could 
accomplish  this.  The  Reports  are  now  so  numerous 
that  few  persons  endeavor  to  possess  them  all ;  and  it 
was  thought  that  this  circumstance  would  give  ad- 
ditional value  and  utility  to  a  full  exhibition  of  au- 
thorities. At  this  School,  we  have,  I  believe,  a  more 
complete  collection  than  exists  elsewhere  of  law  books 
in  the  English  language  5  for  in  England  they  have 
not,  as  far  as  I  know^,  full  collections  of  American 
law,  and  nowhere  else  in  this  country  is  it  attempted, 
as  I  suppose,  to  make  the  series,  both  of  English  and 
American  text-books  and  reports,  absolutely  perfect ; 
this  we  aim  at,  and,  with  few  exceptions,  accomplish. 
And  only  where  I  could  use  such  a  library  should  I  have 
endeavored  to  give  to  all  the  parts  of  so  wide  a  subject 
as  the  law  of  Contracts  this  fulness  of  annotation. 

Nor  would  it  have  been  possible  for  me  to  have  per- 
formed alone  all  the  labor  necessary  for  this  purpose ; 
and  in  the  preparation  of  these  notes  I  have  been  very 


X  PREFACE. 

greatly  indebted  to  Mr.  E.  II.  Bennett,  one  of  the  able 
editors  of  the  very  valuable  reprint  of  English  Law  and 
Equity  Reports,  to  Mr.  A.  W.  Macheu,  formerly,  and  to 
Mr.  C.  C.  Langdell,  now,  Librarian   of  our  Law  School, 
and  to  Mr.  E.  L.  Pierce  and  other  gentlemen  connected 
with  it  as  students.    Few  things  are  more  vexatious  than 
to  search  for  an  authority  referred  to  as  pertinent  to  a 
question  under  investigation,  and  either  fail  of  finding 
it,  or  discover  that  it  is  wholly  irrelevant.     I  believe  I 
may  say,  that  all  that  labor  and  care  could  do  to  prevent 
this  has  been  done.     More  than  six  thousand  cases  are 
referred  to  in  this  volume ;  but  from  the  beginning  to  the 
end  of  the  book  no  case  is  cited  because  cited  elsewhere, 
none  merely  on  the  authority  of  an  index  or  digest,  or  of 
a  marginal  or  head  note,  none  without  actual  investigation 
of  the  case  in  its  whole  extent,  and  none  without  a  sub- 
sequent  and   independent   verification   of  the    citation. 
But  no  care  nor  labor  can  wholly  avoid  mistakes  ;  and 
as  the  plan  of  this  work  is  somewhat  novel,  and  it  em- 
braces a  great  variety  of  topics,  and  presents  questions 
which  it  is  not  only  difficult,  but,  at  present,  impossible, 
to    settle    on   authority,  I  dare  only  to  hope  that  the 
errors  of  the  work  will  not  be  found  so  numerous  or  so 
grave  as  to  impair  materially  its  utility.     And  if  other 
editions  are  called  for,  great  care  will  be  taken  to  profit 
by  all  the  defects  discovered,  and  ail  the  emendations 
suggested. 

It  may  be  noticed,  that  the  citations  and  references 
are  confined,  not  absolutely,  but  very  much,  to  adjudged" 
cases.     I  hope  it  will  not  be  supposed  that  I  wish  to  in- 


PREFACE.  XI 

timate  that  I  have  made  my  book  without  usmg  the 
labors  of  those  who  have  preceded  me  j  for  I  have  sup- 
posed it  to  be  not  only  my  right,  but  my  duty,  to  make 
the  utmost  possible  use  of  all  our  text-books.  But  I  do 
not  often  refer  to  them.  They  have  not  the  same  author- 
ity as  adjudications;  and  a  mere  reference  to  a  text- 
book would  be  of  little  use  to  a  reader  who,  not  having 
access  to  the  volume,  could  not  verify  it;  while  one  who 
could  turn  to  the  book  would  generally  find  with  great 
ease,  by  means  of  the  index,  the  author's  view  of  the 
topic  under  consideration.  I  have  therefore  avoided 
these  references  generally;  and  have  thereby  gained 
what  I  needed  most,  space  for  authorities. 

The  order  under  which  the  various  topics  of  the  very 
comprehensive  subject  of  this  work  should  be  considered 
is  not  determinable  by  any  precise  rules ;  and  without 
supposing  that  I  have  invented  a  division  and  arrange- 
ment which  may  be  regarded  as  logically  precise  and 
accurate,  I  have  found  one  which  was  very  convenient 
to  me,  and  I  have  not  seen  reason  to  believe  that  those 
who  use  the  book  will  find  it  particularly  objectionable. 
But  one  effect  of  this  method  should  perhaps  be  sug- 
gested ;  and  that  is  the  difference  in  the  apparent  pro- 
portions of  the  space  given  to  different  topics.  Thus, 
"  Sales "  may  be  thought  to  occupy  a  comparatively 
small  space  ;  but  it  will  be  found  that  under  the  distinct 
heads  of  Consideration,  Assent,  Warranty,  Guaranty, 
Stoppage  in  Transitu,  Construction,  Statute  of  Frauds, 
&c.,  &c.,  many  things  are  said  which  would  be  said  in 
connection  with  Sales,  if  that  were  the  only  or  the  chief 


Xll  PREFACE. 

topic  of  the  book.  But  these  same  things  are  to  be  no- 
ticed also  in  connection  with  other  topics ;  and  it  was 
thought  best  to  speak  of  them  once  for  all,  when  discuss- 
ing the  distinct  subjects  to  which  they  more  particularly 
belong.  And  in  this  way  I  have  perhaps  avoided  some 
portion  of  the  repetition  which,  both  from  the  nature  of 
the  subject  as  presenting  many  topics  again  and  again 
under  a  great  variety  of  aspects,  and  from  the  difficulty 
which  others  have  found  in  escaping  it,  might  be  thought 
to  belong  almost  inevitably  to  any  treatment  of  the  law 
of  contracts.  T.  P. 


Cambridge, 
October,  1853. 


CONTENTS. 


PART  I. 


THE  LAW  OF  CONTRACTS  CONSIDEEED  IN  EEFERENCE  TO 
THE  OBLIGATIONS  ASSUMED  BY  THE  PARTIES. 


PRELIMINARY    CHAPTER. 

SECTION  I. 

Page 
Of  the  extent  and  scope  of  the  law  of  contracts 3 

SECTION  II. 
Definition  of  contracts 5 

SECTION  in. 
Classification  of  contracts 7 

BOOK  I. 

OE  PARTIES  TO  A  CONTRACT. 
CHAPTER   I. 

CLASSIFICATION    OF   PARTIES.  9 

b 


XIV  CONTENTS. 

CHAPTER   II. 

OF    JOINT    PARTIES. 

SECTION  I. 

Page 
Whether  parlies  are  joint  or  several 11 

SECTION  n. 
Of  some  incidents  of  joinder 21 

SECTION  lU. 
Of  contribution 32 

CHAPTER    III. 

AGENTS. 

SECTION!. 
Of  agency  in  general 38 

SECTION  II. 
In  what  manner  authority  may  be  given  to  an  agent     ....     42 

SECTION  III. 
Subsequent  confirmation 44 

SECTION  IV. 
Signature  by  an  agent •     ...     47 

SECTION  V. 
Duration  and  extent  of  authority 49 

SECTION  VI. 
The  right  of  action  under  a  contract 53 

SECTION  VII. 
Liability  of  an  agent 54 

SECTION  VIII. 
Revocation  of  authority 58 

SECTION  IX. 
How  the  principal  is  affected  by  the  misconduct  of  his  agent     .     62 


CONTENTS.  XV 

SECTION  X. 

Page 
Of  notice  to  an  agent 64 

SECTION  XL 
Of  shipmasters , 66 

SECTION  XII. 
Of  an  action  against  an  agent  to  determine  the  right  of  a  principal    67 

SECTION  xin. 
The  rights  and  obligations  of  principal  and  agent  as  to  each  other   69 

CHAPTER  IV. 

FACTORS    AND    BROKERS. 

SECTION  I. 
Who  is  a  factor  and  who  a  broker 78 

SECTION  n. 
Of  factors  under  a  commission 78 

SECTION  ni. 
Of  the  duties  and  the  rights  of  factors  and  brokers 79 

CHAPTER    V. 

SERVANTS.  86 

CHAPTER   VI. 

ATTORNEYS.  94 

CHAPTER  VII. 

TRUSTEES. 

SECTION  I. 
Origin  of  trusts 100 

SECTION  II. 
Classification  of  trusts 101 


XVI  CONTENTS. 

SECTION  m. 

Page 
Private  trustees 102 

SECTION  IV. 
Public  trustees 104 

CHAPTER    VIII. 

EXECUTORS    AND  ADMINISTRATORS.  107 

CHAPTER  IX. 

GUARDIANS. 

SECTION  I. 
Of  the  kinds  of  guardians 113 

SECTION  II. 
Of  the  duty  and  power  of  a  guardian 114 

CHAPTER    X. 

CORPORATIONS.  117 

CHAPTER  XI. 

JOINT-STOCK   COMPANIES.  121 

CHAPTER  XII. 

PARTNERSHIP. 

SECTION  I. 
What  constitutes  a  partnership 124 

SECTION  n. 
Of  the  real  estate  of  a  partnership 125 

SECTION  III. 
Of  the  good-will 130 


CONTENTS.  XVll 

SECTION  IV. 

Page 

Of  ihe  delectus  2}ersonarii7n 131 

SECTION  V. 
How  a  partnership  may  be  formed 131 

SECTION  VI. 

Of  the  right  of  action  between  partners 139 

SECTION  VII. 
Of  the  shaving  of  losses 141 

SECTION  VIII. 
Of  secret  and  dormant  partners 142 

SECTION  IX. 
Of  retiring  partners 143 

SECTION  X. 
Of  nominal  partners 145 

^     SECTION  XI. 

When  a  joint  liability  is  incurred 147 

• 

SECTION  XII. 
Of  the  authority  of  each  partner 151 

SECTION  xm. 

Power  of  a  majority 168 

SECTION  XIV. 
Of  dissolution 170 

SECTION  XV. 
Of  the  rights  of  creditors  in  respect  to  partnership  funds       .     .     174 

SECTION   XVI. 

Limited  partnerships 185 

b* 


xviii  CONTENTS. 


CHAPTER    XIII. 

Page 

NEW    PARTIES    BY    KOVATION.  187 


CHAPTER    XIV. 

NEW    PARTIES    BY    ASSIGNMENT. 

SECTION  I. 
Of  assignment  of  choses  in  action    .     .     .     .  ■ 192 

SECTION  II. 
Of  the  manner  of  assignment 197 

SECTION  ni. 
Of  the  equitable  defences 198 

SECTION  IV. 
Covenants  annexed  to  land 199 

CHAPTER    XV. 

INDORSEMENT. 

SECTK^  I. 
Of  negotiable  bills  and  notes       202 

SECTION  II. 
Of  the  essentials  of  negotiable  bills  and  notes -206 

SECTION  III. 
Of  indorsement    .     .     .     .     • 211 

SECTION  IV. 
Of  indorsement  after  maturity 213 

SECTION  V. 
Notes  on  demand 217 

SECTION  VI. 
Of  presentment  for  acceptance 221 


COXTENTS.  xix 

SECTION  VII. 

Page 
Of  presentment  for  payment 223 

SECTION  VIII. 

Of  whom,  and  when,  and  where,  the  demand  should  be  made  .     228 

SECTION  IX. 
Of  notice  of  non-payment 231 

SECTION  X. 
Of  protest 237 

SECTION  XL 
Of  damages  for  non-payment  of  bills *  239 

SECTION  XII. 
Bills  of  lading *239 

SECTION  XIII. 
Of  property  passing  with  possession -239 

CHAPTER    XVI. 

INFANTS. 

SECTION  I. 
Incapacity  of  infants  to  contract 242 

SECTION  n. 

Of  the  obligations  of  parents  in  respect  to  infant  children     .     .     247 

SECTION  in. 
Voidable  contracts  for  necessaries 260 

SECTION  IV. 
Of  the  torts  of  an  infant 264 

SECTION  V. 
Of  the  effect  of  an  infant's  avoidance  of  his  contract   ....    268 


XX  CONTENTS. 

SECTION  VI. 

Of  ratification 269 

SECTION  VII. 
Who  may  take  advantage  of  an  infant's  liability 276 

SECTION  vin. 
Of  the  marriage  settlements  of  an  infont 277 

SECTION  IX. 

Infant's  liability  with  respect  to  fixed  property  acquired  by  his 

contract 278 

CHAPTER    XVII. 

OF    THE    CONTKACTS    OF    MARRIED    WOMEN. 

SECTION   I. 

Of  the  general  effect  of  marriage  on  the  rights  of  the  parties     .     283 

SECTION  n. 

Of  the  contracts  of  a  married  woman  made  before  marriage     .     284 

SECTION  III. 

Of  the  contract  of  a  married  woman  made  during  the  marriage     286 

CHAPTER   XVIII. 

BANKRUPTS    AND    INSOLVENTS.  307 

CHAPTER    XIX. 

PERSONS    OF    INSUFFICIENT    MIND    TO    CONTRACT. 

SECTION  I. 
Non  compotes  mentis 310 

SECTION  II. 
Spendthrifts 314 


CONTENTS.  X>:i 


SECTION  III. 

Page 
Seamen 316 

SECTION  ly. 
Persons  under  duress 319 


CHAPTER    XX. 

ALIENS.  323 

CHAPTER    XXI. 

SLAVES. 

SECTION  I. 
Nature  of  the  relation  of  master  and  slave 326 

SECTION  II. 
Action  for  freedom 328 

SECTION  ni. 
The  capacity  of  slaves  to  contract        333 

SECTION  IT. 
Liability  of  the  master  for  the  slave 334 

SECTION  V. 
Of  contracts  between  a  slave  and  one  not  his  master        .     .     .     336 

SECTION  Y. 
Of  gifts  to  a  slave 337 

SECTION  YL 
The  peculium 339 

SECTION  YII. 
Of  the  marriage  of  slaves 340 

SECTION  vni. 

Emancipation 342 


XXI 1  CONTENTS. 


SECTION  IX. 

Page 

Of  slaves  for  a  limited  time,  or  statu-liberi 345 


CHAPTER    XXII. 

OF  OUTLAWS,  PEKSOXS  ATTAINTED,  AND  PERSONS  EXCOMMUNI- 


CATED. 


348 


BOOK  II. 

CONSIDERATION  AND  ASSENT. 
CHAPTER  I. 

CONSIDERATION. 

SECTION  I. 
The  necessity  of  a  consideration 353 

SECTION  II. 
Kinds  of  considerations 356 

SECTION  III. 
Adequacy  of  consideration 362 

SECTION  IV. 
Prevention  of  litigation 363 

SECTION  V. 
Forbearance       366 

SECTION  VI. 
Assignment  of  debt      . 370 

SECTION  vn. 

Work  and  service    .     , 371 

SECTION  VIII. 
Trust  and  confidence 372 


CONTENTS.  XXni 

SECTION  IX. 

Page 
A  promise  for  a  promise        .     .     .     .     • 373 

SECTION  X. 
Subscription  and  contribution 377 

SECTION  XL 
Of  consideration  void  in  part 379 

SECTION  XII. 
Illegality  of  consideration 3S0 

SECTION  XIII. 
Impossible  considerations -  3S2 

SECTION  XIV. 
Failure  of  consideration 386 

SECTION  XY. 
Rights  of  a  stranger  to  the  consideration   . 389 

SECTION  XVI. 
The  time  of  the  consideration 391 

CHAPTER  II. 

ASSENT    OF    PARTIES. 

SECTION  I. 
What  the  assent  must  be 399 

SECTION  n. 
Contracts  on  time 403 


BOOK   III. 

THE  SUBJECT-MATTER  OF  CONTRACTS. 
CHAPTER   I. 

PRELIMINARY    REMARKS.  .  411 


XXIV  CONTENTS. 


CHAPTER  II. 

Page 

PURCHASE   AND    SALE    OF   REAL   PEOPERTY.  414 


CHAPTER  III. 

HIRING    OF    REAL    PROPERTY. 

SECTION  I. 
Of  the  lease 421 

SECTION  n. 
Of  the  general  liabilities  of  the  lessor .     .     .     .     422 

SECTION  III. 
Of  the  general  liability  and  obligation  of  the  tenant     ....     423 

SECTION  IV. 

Of  surrender  of  leases  by  operation  of  law 429 

SECTION  V. 
Of  away  going  crops 429 

SECTION  VI. 
Of  fixtures 431 

SECTION  vn. 

Of  notice  to  quit 432 

CHAPTER  IV. 

SALE  OF  PERSONAL  PROPERTY. 

SECTION  I. 
Essentials  of  a  sale 435 

SECTION  11. 
Absolute  sale  of  chattels 436 

SECTION  m. 
Price,  and  agreement  of  parties 439 


CONTENTS.  XXV 

SECTION  IV. 

Page. 

The  effect  of  a  sale 440 

SECTION  V. 
Of  possession  and  delivery 442 

SECTION  VI. 
Conditional  sales 449 

SECTION  VII. 
Mortgages  of  chattels 452 

CHAPTER    V. 

WARRANTY.  456 

CHAPTEE    VI. 

STOPPAGE    IN    TRANSITU.  476 

CHAPTERVII. 

HIRING    OF    CHATTELS.  491 

CHAPTER    VIII. 

GUARANTY    OR    SURETYSHIP. 

SECTION  I. 
What  is  a  guaranty • 493 

SECTION  II. 
Of  the  consideration 496 

SECTION  III. 

Whether  a  promise  is  original  or  collateral 497 

SECTION  IV. 

Of  the  agreement  and  acceptance 500 

c 


XXVI  CONTENTS. 

SECTION  V. 

Page. 

Of  the  change  of  liability 503 

SECTION   VI. 

How  a  guarantor  is  affected  by  indulgence  to  a  debtor    .     .     .     509 

SECTION  VII. 
Of  notice  to  the  guarantor 514 

SECTION   VIII. 
Of  the  guaranty  by  one  in  office 515 

SECTION  IX. 
Of  revocation  of  guaranty     .     .     . *516 

CHAPTER    IX. 

HIRING    OF    PERSONS. 

SECTION  I. 
Servants 518 

SECTION  II. 
Apprentices 532 

CHAPTER    X. 

CONTRACTS  FOR  SERVICE  GENERALLY.  537 

CHAPTER    XI. 

MARRIAGE. 

SECTION  I. 
Contracts  to  marry 543 

SECTION  II. 
Promises  in  relation  to  settlements  or  advances 554 

SECTION  III. 
Contracts  in  restraint  of  marriage .     556 


CONTENTS.  XXVii 


SECTION  IV. 

Page. 
Contracts  of  marriage 557 

SECTION  V. 
Divorce 566 


CHAPTER    XII. 

BAILMENT. 

Preliminary  remarks 569 

SECTION  I. 
Depositum 572 

SECTION  II. 
Mandatum 580 

SECTION  III. 
Commodatum 590 

SECTION  IV. 
Pignus .591 

SECTION  V. 
Locatio       .     .   ' 602 

SECTION  VI. 
Who  is  a  common-carrier G3t) 

SECTION  VII. 
Obligations  of  a  common-carrier 648 

SECTION   VIII. 
When  the  responsibility  begins    . 650 

SECTION  IX. 
When  the  responsibility  ends 658 

SECTION  X. 
Where  a  third  party  claims  the  goods 677 

SECTION   XI. 
Compensation 660 


XXVlll  CONTENTS. 

SECTION  XII. 

Page. 

Of  the  lien  and  agency  of  tlie  carrier  ;  and  his  responsibility 

beyond  his  own  route 681 

SECTION  XIII. 
Common-carriers  of  passengers 690 

SECTION  XIV. 
Of  special  agreements  and  notices 703 

SECTION  XV. 
Of  fraud 719 


INDEX  TO  CASES  CITED. 


A. 

Page 

Alcbornc  v.  Gomme 

428 

Pae:e 

Aldn 

ch  V.  Grimes 

-273 

Abbey  v.  Chase 

*  48  *  58 

V.  Warren 

-206 

Abbott  V.  Goodwin 

454 

Aldridge  v.  Turner 

496 

Abbot  V.  Hermon 

393 

Alderson  v.  Pope             142, 

*146,  163 

V.  Hundricks 

215 

V.  Temple 

-490 

Abecl  V.  Riidclift" 

422 

Aldis 

V.  Chapman 

293 

Abell  V.  Warren 

245,  246 

Alfred  v.  Fitzjames 

531 

Ex  parte 

-180 

Alex 

andcr  v.  Alexander 

*71 

Abney  v.  Kingsland 

444 

V.  Deneale 

443 

Absolon  V.  Marks 

208 

V.  Gardner 

-441.  445 

Acebal  v.  Levy 

440 

V.  Gibson 

*52 

Acey  V.  Ternie 

41,*  50 

1 

V.  Greene 

645 

Aeker  v.  Phoenix 

414 

V.  Heriot 

-273 

Ackeman  r.  Emott 

*104 

V.  Hutcheson 

269 

Ackley  v.  Kellogg     619,  620, 

*687,689 

V.  Pierce 

320 

V.  Hoskins 

535 

V.  Thomas 

208 

Adair  v.  AVinchestcr 

193 

Alkinson  v.  Horridgc 

474 

Adams  v.  Hardy 

-206 

Alban 

V.  Gripper 

*485 

V.  Jones 

493,  501 

Ailein  v.  Sharp 

343,  344 

V.  Lambert 

415,  452 

Allen 

V.  Anderson 

*475 

V.  Lindsell 

406,  407 

V.  Bryan 

75 

V.  New  Orleans    Stc 

im- 

V.  Cameron 

388 

Tow-Boat  Co. 

646 

V.  Oentre  Valley  Co. 

-180 

?'.  Otterback 

235 

V.  Culver 

425 

V.  llobinson 

^189 

V.  Davis 

*62 

V.  Smith 

*217 

V.  Dunn 

*176 

I'.  Torbcrt 

231 

V.  Dykers 

596,  598 

V.  Wheeler 

443 

V.  Hayward 

89,  -  92 

V.  Woonsocket  Co. 

528 

V.  Hooker 

*475 

Adamson  r.  Jarvis 

*37,  *69 

V.  Merchants'  Bank 

*73 

Addison  v.  Gandassequi 

*82 

V.  IMinor 

243, 261 

Adelle  v.  Beuregard ' 

330 

I'.  Pink 

472 

Adlard  v.  Booth 

387 

V.  Sewell                    64 

5,  655,  657 

Agawam  Bank  v-  Strever 

509 

V.  Smith's  Admr. 

225,  227 

Agnew  V.  Bank  of  Gcttysbni 

g          234 

V.  Suydam 

*74 

Aguire  v.  Parmelec 

486 

t'.  Thompson 

-497 

Aiken  v.  Barklcy 

216 

V.  Wells 

175,-180 

Ainslie  v.  Boynton                * 

191,*  199 

V.  Williams 

-239 

V.  Medlycott 

-376 

Allison  V.  Haydon 

539 

Akerman  v.  ILimplirey 

489 

Allnutt  V.  Asbenden 

509 

Albin  V.  Presby 

631 

AUwood  V.  Haseldon 

224 

Albro  V.  Aganuni  Canal  Co. 

528 

Alston  V-  Balls 

605 

XXX 


INDEX  TO  CASES  CITED. 


Pace 

Alvord  V.  Smith  *131 

Ambler  v.  Bradley  *  136 

Am.  Bank  v.  Doolittlc  1G2 

V.  Jenness  -217 

American  Ins.  Co.  v.  Oakley  *  118 

Amherst  Academy  v.  Cowls  378 

Amidown  v.  Osgood  *14.5 

Amies  v.  Stevens  637 

Amor  V.  Fearon  521,  522 

Amory  v.  Brodrick  445,  450 

Anchor  r.  Bank  of  England  -  212 

Anderson  v.  Anderson  567 

V.  Coonley  39 

V.  Davis  400 

V.  Drake  229 

V.  Hodgson  446 

r.  Mannon  513 

V.  jMartindalc    *  1 4, 1 7,  26, 3 1 

y.  Miller  *196 

V.  Tompkins  *  153,  155, 

-156,  160 

v.  Turnpike  Co.  27 

r.  Van  Alen  *  198 

Andrew  v.  Allen  *  54 

Andrews  u.  Bond  -212 

w.  Estes  *49 

r.  Franklin  211 

V.  Kneeland  *  52,  467 

V.  Planters  Bank  162 

Andrus  v.  Foster  531 

Angel  V.  McLellan  255,  259 

Angerstein  v.  Handson  426 

Angier  v.  Angier  301 

Anonymous  11,50,  *  627 

Antram  v.  Chace  -376 

Appleby  v.  Dodd  317 

Appleton  V.  Binks  *54,  515 

V.  Chase  -376 

r.  Donaldson  600 

Archard  v.  Hornor  520,  527 

Archer  v.  Hudson  116 

Arden  v.  Pullcn  422,  423 

r.  Tucker  23 

Argall  V.  Smith  -186 

Armfieid  v.  Tate  -  273 

Armistead  v.  White  626 

Armitagc  v.  Insole  445 

Arms  V.  Ashley  355 

Armstrong  v.  Baldock  442 

i\  Christian!  235 

V.  Hussey  143 

V.  Lewis  *  132 

V.  IMcDonnald  258 

V.  Kobinson  *  168 

V.  Toler  *  85,  380 

Arnold  r.  Brown           *  156,  160,  -  173 

V.  Halenbakc  645 

V.  Lyman  188,  390 

Arnot  V.  Biscoe  462 

Arnott  V.  Hughes  462 

Arusby  v.  Woodward  427 


Page 
An-ott  V.  Brown  *  74 
Arthur  v.  Barton  *  67 
V.  Wells  333 
Arton  V.  Booth  162 
Ash  V.  Putnam  *  490 
V.  Savage  454 
Ashburnham  v.  Thompson  *  103 
Ashby  V.  Ashby  109 
Ashmole  ?•.  Wainwright  649 
Aston  V.  Heavan  690 
Aspdin  V.  Austin  -529 
Aspinall  v.  AVake  111 
Astley  V.  Eevnolds  320.  321 
Astor  V.  Miller  *  200 
Atchinson  i\  Baker  547,  549 
Atkin  V.  Acton  521,  526 
V.  Barwick                  *  441,  -  490 
Atkins  V.  Curwood  288,  289 
V.  Hill  107 
V.  Howe  472 
Atkinson  v.  Bayntun  366 
V.  Manks  208 
V.  Eitchie  446 
V.  Settree  367 
Atkyns  v.  Amber  83 
Atlee  V.  Backhouse  320,  365 
Atwood  y.  Gillett  -173 
Attwood  V.  Clark  450 
V.  Munnings  41,  52 
V.  Small  *  63 
Att'y-Gen.  v.  Ansted  *  62 
V.  Brooke  422 
V.  Davy  120 
V.  Riddle  43 
V.  Sands  100 
V.  Sid  don  88 
Aubin  V.Bradley  -449 
Austen  v.  Wilward  25 
Austin  r.  Boyd  -206 
V.  Burns  208 
V.  Charlestown  Female  Semi- 
nary 276 
V.  Hall  22 
V.  The  M.,  S.,  &  L.  Railway 
Co.              707,715,716,718 
Auworth  V.  Johnson  *  425 
Aveline  v.  Whisson  *-  96 
Averill  v.  Hedge  407 
V.  Loucks  128 
Avery  v.  Cheslyn  432 
V.  Lauve  124 
V.  Stewart  235 
Awde  V.  Dixon  *212 
Ayer  ?;.  Bartlett  -449 
V.  Chase  535 
V.  Hutchins  215,  -217 
Ayers  v.  Hewitt  274 
Ayliffc  V.  Archdale  261 
V.  Tracy  555 
Ayraar  v.  Ashtor  645 
V.  Sheldon  .    231 


INDEX  TO  CASES  CITED. 


XXXI 


Page 

Babb  V.  Clemson  442 

Babcock  v.  Herbert  645 

V.  Stone  161 

V.  Wilson  -  37C 

Bach  V.  Owen  445,  450 

Bachelder  y.  Fiske  3L*33 

Bachurst  !).  Clinkard  *176 

Backhouse  v.  Snecd  636 

Bacon  v.  Brown  463 

V.  Dyer  227 

V.  Sondley  53 

Bacot  V.  Parnell  610 

Baddelcy  v.  Mortlock  548,  549 

Badger  v.  Phinney         266,  *  268,  -  268 

Badiam  v.  Tucker  601 

Badnall  v.  Samuel  236 

Baglchole  r.  Walters  473 

Baikie  v.  Chandless       '  *  98 

Bailey  v.  Adams  511,  513 

V.  Bamberger  *  268 

y.  Bidwell  -206 

V.  Freeman  496 

V.  Mogg  539,  540 

V.  Porter  235 

V.  Quint  681 

Bailevville  v.  Lowell  370 

Baillie  v.  Kell  526 

Bainbridgc  v.  Pirmston  373 

r.  Wade  *  497 

Baird  v.  Matthews  465 

Baker  v.  Adams  -  433 

V.  Barney  302 

V.  Corey  540 

V.  Jacob  367 

V.  Hoag  581 

V.  Keen  248,  371 

V.  ^Yh\tQ  556 

V.  Woodruff  614 

Balch  V.  Smith  *  197 

Baldey  v.  Parker  417,  444 

Baldy  v.  Stratton  552,  553 

Balfeu.  West  581,586 

Ball  V.  Dunsterville  94 

V.  Newton  399 

Ballou  V.  Talbot  *  58 

Balmain  v.  Shore  *  127,  -  173 

Bamford  v.  lies  504 

V.  Shuttleworth  67 

Bancroft  r.  Dumas  *382 

V.  Hall  229 

Bancroft's  case  676 

Bandy  v.  Cartwright  422 

Bangor  Bank  v.  Treat  12 

Bangs  V.  Strong  513 

Bank  v.  Myers  230 

Bank  of  Australasia  v.  Bank  of 

Australia  SSI 

Bank  of  Cape  Fear  v.  Seawell  235 

Bank  of  Catskill  v.  Messenger  24 


Page 
Bank  of  Chenango  v.  Osgood  24 

V.  Boot  163 

Bank  of  Columbia  v.  Patterson's 

Adm'r.  94,  *  118,  540 

Bank  of  Commerce  v.  Union 

Bank  220 

Bank  of  Metropolis  v.  Guttschlick  47 
Bank  of  Montgomery  v.  Walker  216 
Bank  of  Kochcstcr  y.  Jones  *84 

Bank  of  Salina  v.  Babcock  *  21 7 

Bank  of  Sandusky  v.  Scoville  *217 
Bank  of  St.  Albans  v.  F.  &  M. 

Bank  220 

Bank  of  U.  S.  v.  Binney  - 158 

V.  Carneal  221 

r.  Dandridgc  *  118 

U.Davis     *  64,*  66, 234 

y.  Leathers  238 

y.  Lyman  53 

Bank  of  Utica  v.  Bender  *233 

V.  McKinster  586 

V.  Smith  228 

Banks  v.  Mitchell  *  141 

y.  Walker  324 

Banncs  v.  Cole  701 

Banorgee  v.  Hovcy  42,  94 

Barber  v.  Fox  107,  367 

V.  Gingell  *  44 

V.  Hartford  Bank  *176 

Barclay  v.  Bailey  222 

V.  Lucas  506,  507,  *  508 

Ex  parte  235 

Barden  v.  Keverberg  -  306 

Bardwcll  v.  Lydall  496 

y.  Perry  *  174, -180 

Barger  y.  Collins  195 

Baring  r.  Clark  238 

V.  Corie  *  84 

y.  Lyman  *  141 

Barker  y.  Brahara  47 

V.  Clarke  *  233 

V.  Goodair  -  173,  -  180 

V.  Harrison  414 

V.  Mar.  Ins.  Co.  *  75 

V.  Parker  507,  *  508 

V.  Richardson  22,  162 

V.  Robei'ts  615 

Barklie  v.  Scott  125,  *  164 

Barksdale  y.  Brown  *51 

Barlow  v.  Bishop  *  212,  293 

V.  Ocean  Ins.  Co.  364 

y.  Planters  Bank  235 

V.  Wainwright  429 

Barnard  v.  Bridgeman  67 

y.  Eaton  454,  455 

y.  Yates  467 

Barnehurst  v.  Cabbot  36S 

Barnes  v.  Hedley  358,  359 

V.  Holcomb  453 

V.  Marshall  680 

V.  Pcrine  377,  378,  37^ 

Barnctt  v.  Lambert  *  50 


xxxu 


INDEX  TO  CASES  CITED. 


Page 

Barnett  v.  Stanton 

470 

Barney  r.  Brown 

443 

V.  Currier 

163 

V.  Prentiss 

719 

V.  Smith 

-173 

Baron  v.  Husband 

*191 

Baroup;^  v.  White 

-217 

Barr  v'.  Hill 

357 

V.  Marsh 

*233 

V.  Myers 

447 

Barratt  v.  Allen 

235 

Barrett  v.  Buxton 

311 

V.  Goddard 

-441, 

*485 

V.  Hall 

466 

V.  Pritchard 

-449 

V.  Swan 

142 

,-158 

I'.  Union  M.  F.  Ins.  Co.         195 

Barrow  v.  Paxton  •            453,  594 

Barstow  v.  Hiriart  235 

Bartholomew  v.  Jackson  372,  531, 

541,  581 

Bartlctt  V.  Jones  *  136 

V.  Pearson  *  196 

V.  Pcntland  •    *  69 

V.  Vinor  ^  382 

r.  Williams  443 

V.  AVyman  318 

Barton  v.  Hanson  *  148 

r.  WoUiford  639 

Bartram  v.  Farebrother  -490 

Bashore  v.  Whistler  '              457 

Bass  V.  Clivc  220 

Basset  v.  Collis  474 

Bastow  V.  Bennett  *  508 

Bate  V.  Burr  53 

Bates  V.  Cort  ^         374,-382 

V.  Delavan  '                    417 

I'.  Stanton  621,678,679 

Batson  I'.  Donovan  677,711,714, 

719,  720 

Batty  V.  McCundie  *  146 

Baudier  ex  parte  *"  180 

Baum  V.  Stevens  464 

Bavington  r.  Clarke  263 

Baxcndale  w.  Hart  719 

Baxter  r.  Baxter  518,  519,  567 

u.  Earl  of  Portsmouth     311,312 

);.  Little  215 

V.  Nurse  518 

V.  Wales  363 

Bay  V.  Chureh  238 

r.  Cook  *58,  *106 

V.  Coddington  *  212,  *  217 

V.  Gunn  242 

Bayard  v.  Lath.y  222 

V.  Shuiik  221 

Bayley  r.  Culverwell  *44I 

r.  Gouldsmith  450 

V.  Lawrence  425 

V.  Kimmell  518 

Bavliffe  v.  Buttcrworth  *-  50,  *  69 

Baylie  v.  Clare  322 


Page 

Baylis  v.  Dinely  243,  244,  261 ,  269,-273 

V.  Usher  675 

Baylor  v.  Smithers  443 

Bayly  v.  Garford  23 

V,  Sehofield  477 

Baynham  v.  Guy's  Hospital  422 

Baynon  v.  Batley  301 

Beaeh  v.  Hotchkiss  *140 

V.  Olmstead  463,  469 

V.  State  Bank  161,  222 

Beale  v.  Sanders  426 

Beall  V.  Joseph  339 

Beals  V.  Peck  235 

Beal's  Admr.  v.  Alexander  235 

Bean  v.  Burbank  355,  440 

r.  Green  713,719 

V.  Herrick  _      462 

V.  Simpson  *  198,  447 

V.  Sturtevant  643,  657 

Beard  v.  Kirk  59 

V.  Webb  306 

Beardcsley  v.  Baldwin  208 

Beardsley  v.  Richardson  587 

Bears  v.  Ambler         '  425 

Beattie  v.  Robin  443 

Beatty  v.  Gilmore  702 

Beaufort  r.  Nceld  41 

Beavan  v.  Delahay  430 

Beck  r.  Evans  711,714 

V.  Rebow  432,  *  433 

u.  Robley  218 

Beckham  v.  Drake  7,  *48,  53,  110 

Beckley  v.  Munson  34 

Beckman  v.  Shouse    606,  643,  707,  719, 

720 

Beckwith  v.  Cheever  404,  407 

Beddoe's  Ex'r  v.  Wadsworth  110 

Beebee  v.  Robert  53,  467 

Beecham  v.  Dodd  *  132,  *  166 

Beecker  V.  Beecker  108,  *191 

Beek  v.  Robley  214 

Beeler  v.  Young  245,  246,  261 

Beeman  v.  Buck  464 

Beer  v.  Beer  23 

Bccston  V.  CoUyer  578 

Beirne  v.  Dord  468 

Belcher  v.  Mcintosh  425 

Beldon  v.  Campbell  *67 

Belknap  v.  Wendell  133 

Bell  V.  Brucn  495 

r.  Chaplain  *20 

V.  Cijnningham  *44,  *74 

V.  Francis  *122 

V.  Ha2:erstown  Bank  234 

r.  Locke  *131 

V.  Martin  506 

I'.  Moss                 477,  478,  482,  487 

V.  Newman  -180 

r.  Phvnn  *127 

V.  Qu'in  *382 

V.  Speight  1 1 1 

V.  Welch  *497 


INDEX   TO    CASES    CITED. 


XXXUl 


Page 

Bellairs  v.  Ebsworth  506 

Bellows  V.  Lovell  509,511 

Belton  V.  Hodges  262 

Belworth  v.  Hassell  452 

Bench  v.  Merrick  549 

V.  Sheldon  462 

Bend  v.  Hoyt  67 

Benden  v.  Manning  585 

Benedict  i'.  Davis  *151 

V.  Morse  -433 

V.  Smith  46 

Benham  v.  Bishop  269,  270 

Benjamin  v.  Benjamin  288 

y.  Tillman  211 

Benners  v.  Howard  445 

Bennet  v.  Mellor  -627 

V.  Paine  364,  365 

Bennett  v.  Button  696 

V.  Davis  243 

V.  Filyaw  688,  689 

V.  T.  &  O.  Steamboat  Co.  696, 

698 

V.  Sims  -449 

V.  Stickney  163 

V.  Womack  423 

Ex  parte  75 

Benson  v.  Remington  252,  257 

Bent  r.  Hartshorn  -508 

V.  Manning  245,  246 

V.  Puller  444 

Bently  v.  Griffin  289 

Benton  v.  Chamberlain  143 

Benyon  v.  Nettlefold  380 

Berard  v.  Berard  529 

Bergen  v.  Bennett  *  61 

Berkeley  v.  Hardy  94 

Berkley  v.  Watling  -239,  487 

Berkshire  Bank  v.  Jones  *  233 

Berkshire  Woollen  Co.  v.  Proctor -627, 

628,  629 

Bernard  v.  Torrance  *  145 

BeroUes  v.  Ramsay  246 

Berry  v.  Robinson  231 

V.  Scott  540 

Bertrand  v.  Barkman  *  217 

Besford  v.  Saimders    270,  271,  308,  309 

Best  V.  Barber  308 

V.  Givens  270 

V.  Jolly  379 

V.  Osborne  474 

V.  Stow             '  414 

Betsey  r.  Rhoda  317 

Betts  u.  Gibbins  *37,  *69,  483 

BeA'an  v.  Lewis  *  157,  159 

Bevans  w.  Sullivan  139 

Beverley's  Case  310 

Beverley  v.  Beverley  555 

V.  The  Lincoln  Gas  Light 

and  Coke  Co.     *  118,  450 

Beverleys  v.  Holmes  355 

Bexweli  v.  Christie  420 


Bianchi  v.  Nash 
Bickerton  v.  Burrell 
Bickford  v.  Gibbs 
Biddell  v.  Dowse 
Biddlecomb  v.  Bond 
Biddluph  V.  Poole 
Bigelow  V.  Benton 
V.  Davis 
V.  Dennison 
V.  Grannis 
V.  Heaton 
V.  Huntley 
17.  Kinney 
V.  Willson 
Bilbie  v.  Lumley 
Biles  V.  Holmes 
Billings  V.  Billings 
Bingham  v.  Rogers 
Bingham  v.  Sessions 
Birch  V.  Earl  of  Liverpool 

V.  Sharlai^d 
Bird  V.  Astcock 
V.  Blosse 
V.  Boulter 
V.  Brown 
V.  Gammon 
V.  Jones 
V.  Le  Blanc 
Birdseye  i'.  Ray 
Birge  v.  Gardiner 


Page 

450 

55 

*497,  -514 

374,-376 

477 

429 

494 

391 

*44,  47 

270,  271 

681 

-449 

-273 

193,  *197 

363 

605 

567 

r07,  710,  722 

320 

-529 

308 

676 

555 

97 

45.47,473 

188,  *191 

295 

*233 

178 

701 


Birkenhead,  Lancashire  &  Cheshire 

Railway  v.  Pilcher  281,  282 

Birkett  u.  Willan  711 

Birkley  v.  Presgrave  *35 

Bisel  V.  Hobbs  *  152 

Bishop  V.  Brecklcs  *171 

V.  Montague  47 

V.  Shepherd  523 

v.  Williamson  623 

Bishop  of  Chester  W.John  Freeland  381 

Bissell  V.  Hopkins  443,  454 

Bixby  V.  Whitney  447 

Bi.xler  v.  Ream  368 

Black  f.  Bush  *174 

V.  Webb  439 

Blackburn  v.  Mackey  248,  250 

Blackett  u.  Weir  *32 

Blackhurst  ?'.  Clinkard  *175 

Blackraore  v.  Phill  345 

Blackstone  Bank  v.  Hill  513 

Blades  v.  Pree  294,  295,  304,  305 

Blague  V.  Gold  421 

Blair  v.  Bank  of  Tenn.  227 

Blake  v.  Buchannan  *196 

Blake  v.  Cole  370 

V.  Howe  •                428 

V.  Lanyon  -  532 

V.  Parlin  496 

V.  Peck  367 

Blake,  Admin,  v.  Midland  Railway 

Co.  700 


XXX17 


INDEX   TO    CASES    CITED. 


Blanchard  v.  Coolidge 
V.  Dixon 
V.  Isaacs 
Bland  v.  Negro  Dowling 
Blane  v.  Proudfit 
Bleeker  v.  Hyde 
Blennerhassett  v.  Monsell 
Bligh  L\  Brent 
Blight  V.  Page 
Blin  I'.  Pierce 
Blood  V.  Enos 

V.  Goodrich 
V.  Palmer 
Bloss  V.  Kittridge 
Blot  i\  Boiceau 
Blount  V.  Hawkins 
Blowers  v.  iSturtevant 
Bloxam  v.  Sanders 
Bluett  V.  Osborne 
Blunt  V.  Melcher 
Blydenburgh  v.  Welsh 
Blythe  v.  Dennett 
Boardman  v.  Gore 
V.  Paige 
Bobo  V.  Hansel! 
Bodenham  v.  Bennett 
V.  Purchas 
Boehm  v.  Sterling 
Boehme  r.  Carr 
Boggs  V.  Curtin 
Bohtlingk  v.  Inglis 
Bolan  V.  Williamson 
Bolin  V.  Hufinagle 
Bolton  V.  Hillersden 
V.  Lee 
V.  Prentice 
V.  Puller 
Bomar  v.  Maxwell 
Bonar  i'.  !Macdonald 

V.  Mitchell 
Bonbonus,  ex  parte 
Bond  V.  Farnham 

I'.  Gibson 

V.  Hays 

V.  Pittard 
Bonham  v.  Badgley 
Bonner  v.  Wellborn 
Bonney  v.  Seclcy 
Boody  V.  McKenney 
Bool  v.  Mix 
Boorman  v.  Jenkins 
Booth  V.  Hodgson 

V.  Parks 
Boraston  v.  Green 
Borden  v.  Houston 
Borrekins  v.  Bevan 
Borthwick  i-.  Carrutliers 
Bosanquet  v.  Wray 
Boson  V.  Sandford 
Boss  V.  Litton 
Boston  Bank  v.  Chambcrlin 


Page 

*136 

333 

*C52 

336, 345 

*44 

493, 


501 

285 

280 

383 

188, *  196 

526 

47,  *  95, 

450* 

463 

58 

499 

294, 295, 297 

*441,  447,  479 

470 

535 

462 

434 

161 

34,  *35,  *36 

270 

711,  714,  719 

506 

218 

235 

31,  *35 

485 

623 

485 

46 

12 

290,  293 

-  212 

673,  720,  721 

505 

238 

*157 

226 

159,  160,  161 

*140 

*14l 

564 

624 

34 

269,  272,  -273 

243,  269,  272,  280 

467,472 

*37 

-173 

430 

503 

465,  4G8,  474 

242 

*141 

646,  647 

700 

-273 


Boston  &  Maine  li.  R. 

V.  Bartlett 

rage 
403 

Bostwick  V.  Dodge 

*217 

Botiller  v.  Newport 

279 

Bott  V.  McCoy 

*5l 

Boucliell  V.  Clary 

261 

Boucher  i'.  Lawson 

646 

Boultbec  V.  Stubbs 

237 

Boulter  v.  Peplow 

*32 

,  *35 

Boulton  V.  Welsh 

235 

Bound  V.  Lathrop 

163 

Bourne  v.  Diggles 

*74 

V.  Free'th 

*122 

V.  Mason 

389 

Bovil  V.  Hammond 

139, 

*140 

Bowdell  r.  Parsons 

445 

Boweu  V.  Burke 

*441 

V.  Newell 

230 

Bower  v.  Major 

-433 

V.  Swadlin 

162 

Bowerbank  r.  Monteiro 

108 

Bowes  V.  Howe 

224 

*233 

V.  Tibbets 

531 

535 

Bowie  V.  Napier 

*80 

Bowles  V.  Pound 

418 

Bowman  v.  Bailey 

139 

V.  Hening 

443 

V.  Hilton 

681 

V.  Teall 

637 

,  675 

Bowyer  ?•.  Bright 

417 

Boyce  v.  Anderson 

333,  691 

,  694 

V.  Edwards 

222 

V.  Ewart 

509 

Boyd  V.  Anderson 

386 

V.  Bopst 

458 

V.  Cleaveland 

231 

V.  Croydon 

117 

V.  Plumb 

162 

V. '  Vanderkemp 

*64 

Boyden  v.  Boyden 

-273 

,  276 

Boyers  v.  Elliott 

126 

Boyle  V.  McLaughlin 

660 

,  674 

Boynton  v.  Dyer 

*  103, *  104 

V.  Kellogg 

543 

,  549 

Boyson  v.  Coles 

*80 

Braccgirdlc  v.  Heald 

-529 

Bracey  v.  Carter 

*98 

Brackett  v.  Blake 

194 

V.  IJullard 

455 

Bracken  v.  Miller 

*65 

Bradburne  i'.  Bot field 

17,  19.  26 

V.  Bradburne 

379 

Bradbury  i\  Wright 

423 

Bradford  i\  Bush 

*52, 

464 

V.  Man  ley 

467 

472 

V.  TapjKUi 

439 

Bradish  v.  Henderson 

588 

Bradlee  v.  Boston  Glass 

Co. 

48 

Bradley  v.  Cary 

493 

V.  Holdsworth 

280 

V.  Pratt 

261 

r.  Richardson 

79 

INDEX    TO    CASES    CITED. 


XXXV 


P:lgo 

Bradley  v.  Watcrhouse  7il 

V.  White  *  136 

Bradshaw  v.  Bennett  416 

Brady  v.  Giles  -92 

V.  Haines  -       443 

V.  Mayor  539' 

Bragg  V.  Fessenden  *  95 

Braithwaite  v.  Scoficld  *  122 

V.  Skinner  107 

Bramah  u.  lloberts  *  122,  217 

Bramhall  v.  Beckett  215,  *  217 

Brancli  v.  Ewington  535 

Branch  Bank  t'.  Boykin  309 

Brand  v.  Boulcott  *  20,  31 ,  *  35 

Brandon  v.  Hubbard  31 

V.  Old  311 

V.  Planters'  Bank        336,  338 

Brandt  y.  Bowlby  -239 

Bray  v.  Hadwen  234 

V.  May  no  -602 

Brealey  v.  Andrew  369 

V.  Collins  414 

Breckenridge's  Heirs  v.  Ormsby  244,  276 
Breckinridge  v.  Shrievc 
Brecknock  Co.  v.  Pritchard 
Bredin  v.  Dubarry 
Breed  v.  Hilltiouse 
Bremner  v.  Williams 
Brent  V.  Green 
Brenton  v.  Davis 
Breverton's  Case 
Bi'ewster  r.  Hammett 
Brewer  v.  Dyer 

V.  Salisbury 

V.  Sparrow 
Brice  v.  Stokes 
Bricheno  v.  Thorp 
Bridge  v.  Hubbard 

V.  Niagara  Ins.  Co. 
V.  The  Grand  Junction  R 
Co. 
Bridges  v.  Berry 

V.  Hitchcock 
Bridgeman's  Case 
Bridgewater  Academy  v.  Gilbert 
Brien  v.  Williamson 
Briggs  V.  Georgia 
Bright  V.  Carpenter 
Brind  i\  Dale 
Bringloc  v.  Morrice 
Brinley  v.  Mann 
Brisban  v.  Boyd 
Bristol  V-  Warner 
Britton  v.  Bishop 

r.  Turner 
Brix  V.  Braliani 
Broad  v.  Thomas 
Broadwater  v.  Blot 
Broadwell  v.  Getman 
Brockclbank  v.  Sugrue 
Brockway  v.  Burnap 
Broennenburgh  v.  Haycock 


158 

425,  661 

46 

225,-574 

698,  699 

403 

469 

193 

*174,  *175 

391 

*441,  443 

47 

28 

*98 

381 

391 

702 
224 
422 
432 
377 
.345 
539 

-206 

605,  633,  642,  650 

591 

*I19 
407 
211 
215 
524,  526 
308 
*84 
618 

-529 
43 

*136 
474 


Brothers  v.  Brothers 
Bromage  i'.  Lloyd 
Bromley  u.  Holland 
Brooke  v.  Endcrby 

V.  Evans  * 

V.  Gaily 
V.  Pickwick 
V.  Washington 
Drooker  v.  Scott 
Brooks  r.  Ball 

?;.  Mitchell 
V.  Minturn 
i\  Powers 
V.  Stuart 
Broom  v.  Broom 
Broome,  ex  parte 
Brown  i\  Adams 
V.  Allen 
V.  Bellows 
V.  Bement 
V.  Chase 
V.  Collier 
r.  Compton 
V.  Crump 
■    V.  Davies 
V.  Denison 
V.  De  Winton 
V.  Doyle 
V.  Durham 
V.  Eastern  R.  II. 
V.  Edgington 
V.  Elkington 
V.  Furguson 
V.  Gibbins 
r.  Jo  dd  re  11 
V.  Langford 
V.  Leonard 
V.  Litton 
r.  Lull 

V.  Maine  Bank 
V.  Marsh 
V.  INIaxwell 
V.  McCune 
V.  McGran 
V.  Mott 
I'.  Patton 
V.  Sloan 
V.  Tapscott 
V.  United  States 
V.  Wooton 
In  Re 
Browne  v-  Lee 
Brownell  v.  Flagler 

V.  Hawkins 
Browning  r.  Kcane 
Broxham  i-.  Wagstaffe 
Bruce  v.  Bruce 
V.  Lytle 
V.  Pearson 
Bruen  v.  Marqnand 
Brumby  v.  Smith 
Brummel  v.  Stockton 


Page 

75 

*205,  *212 

53 

143 

148,  153,  *157 

271 

711,  719,  721 

142 

246 

370 

-217 

*49 

443 

24 

126 

-173 

355 

25 

439 

453 

116 

308 

332 

396,  425,  426 

213,  214,  215 

619 

-206,  207 

12 

264 

Co.  719 

469 

474 

234,  236,  238 

-*  148 

311 

380 

142 

77,-173 

316 

^196 

25 

264,  528,  701 

264,  265 

58,  59,  *80 

216 

295,  297 

364 

139 

324 

12 

230 

*32,  *35 

701 

*  595,  600 

563 

520,  527 

219 

226,  *2.33 

399 

22,  162 

611 

443 


XXXVl 


INDEX   TO    CASES    CITED. 


Brush  i\  Scribncr 
Brutton  r.  Burton 
Bryan  v.  Jackson 
V.  Lewis 
V.  Wethcrhcad 
Bryant  v.  Craig- 

V.  Eastman 
V.  Flight 
V.  Goodnow 
V.  Jackson 
V.  Kelton 
Bryce  ?'.  Brooks 
Brydcn  v.  Taylor 
Bryer  v.  Weston 
Buchan  v.  Sumner 
Buchanan  v.  Curry 

V.  Marshall 
Buck  V.  Buck 

V.  McCaughtry 
■V.  Winn 
Buckingham  v.  Burgess 
Buckland  v.  Butterfield 
Buckley  v.  Barber 
V.  Bucklej' 


Page 

*217 

94 

250 

438 

421 

*103 

-206 

538 

370,  378 

311 

443 

*84 

237 

*152 

126,  *129 

*168 

*233 

*85 

417 

126 

*151 

432 

*112,-173 

126 


V.  Furniss        483,  -  485  *  490 

Ex  parte  103 

Bucklin  i\  Thompson  454 

V.  Ward  195 

Buckman  v.  Levi  446,  -  654 

Buckmaster  i\  Smith  449 

Buckmyr  v.  Darnell  494 

Bucknam  v.  Barnum  133,  *  152 

V.  Goddard  458 

Buckner  v.  Finley  -  238 

Budd  V.  Fairmaner  463 

Buffington  v.  Curtis  -  239 

V.  Quantin  *475 

Buffara  r.  Merry  614 

Buford  V.  McNeely  *  172 

Bulkier  V.  Dayton  22 

V.  Derby  Fishing  Co.  1 20 

Bullard  v.  Young  673 

BiiUer  V.  Fisher  648 

1-.  Harrison  67 

Bullet  V.  Bank  of  Penn.  241 

Bullock  V.  Atheam  208 

V.  Babcock  264 

r.  Dommit  425 

Bunker  v.  Miles  *  75 

Bunn  V.  Guy  357 

Bunney  v.  Payntz  420,  483 

Burbridge  v.  Manners  -  233 

Burckle  v.  Eckart  *  136 

Burden  r.  Ferrers  12 

Burdett  v.  Withers  425 

Burgan  r.  Lyell  *145 

Burgcss'r.  Atkins  *177 

V.  Clements  626,  *  627 

i\  Gray  -92 

Burghart  v.  Augerstein       245,  246,  262 

V.  Gardner  97,  539 


Page 

Burghart  v.  Hall  245 

Burham  I'.  Webster  215 

Burk  v.  Baxter  *433 

Burke  v.  Cruger  513 

V.  McKay  238 

V.  Negro  Joe  330 

V.  Winkle  306 

Burks  V.  Shain  553 

Burley  v.  Ptussell  -  264 

Burlingame  v.  Burlingamc  258 

Bumester  v.  Barrow  *  233 

Burn  V.  Morris  47 

Burnby  v.  BoUett  471 

Burncil  v.  Minot  *35 


Burness  v.  Pennell 
Burnet  v.  Bisco 
Burnham  v.  Tucker 
V.  Wood 
Burns  v.  Fletcher 
Burnside  v.  Merrick 
Buron  v.  Denman 
Burrall  v.  Acker 

r.  Jacob 
Burrell  i\  Jones 

V.  North 
Burrough  ?•.  Moss 
Burroughcs  v.  Clarke 
Burrougiis  v.  Hanegan 

i\  Richmond 
Burson  v.  Kincaid 
Burtou,  ex  parte 

V.  Griffiths 

V.  Hughes 

V.  Issit 


43,  *122,  *146 
355 
215 
215 
470 
*  128,  *129 

47,  -433 

177 

-441 

*  99,  515 
655 
215 
538 
226 
311 
162 
308 
*106 
578 
163 


V.  Philadelphia  &e.  Railroad  117 

1-.  Wilkinson  621 

Burvvelly.MandevillcEx'r.  *  172,  -173 

Bush  v.  Barnard  309 

V.  Davies  *44l 

V.  Miller  607 

V.  Steinman  93 

Busk  V.  Davis  -  441 

Busard  v.  Levering  230.  -  233,  235 

Buson  V.  Dougherty  -449 

Butler  r.  Basing  655 

r.  Breck  246 

V.  Craig  329,  332 

V.  Heanc  719 

V.  Tufts  458 

V.  Wigge  381 

Butnam  v.  Abbot  538 

Butt  V.  Great  Western  R.  R.  Co.      605 

Butterfield  v.  Forrester  702 

r.  Hartshorn  *  189,  *  191 

Butterworth  r.  McKinley  -441 

Buxton  V.  Jones  229 

Bynum  v.  Bostick  326,  336 

Byrd  v.  Boyd  520,  521 

r.  Fox  139 

Bvers  v-  Dobey  11 

V.  McClanahan  *  37,  *  95 


INDEX   TO    CASES    CITED. 


XXXVIJ 


Byrne  v.  Doughty 
Byrne  v.  Fitzhugh 
Bywater  v.  Richardson 

C. 

Cabell  V.  Vaughan 
Cabot  V.  Haskins 
Cadman  v.  Horner 
Cadogan  t'.  Kennett 
Cady  V.  Shepherd 
Cahill  V.  Bigelow 
Cailiff  V.  Danvei'S 
Cain  V.  Spann 
Cairnes  v.  Bleecker 
Caines  v.  Smith 
Caine's  Case 
Caldecott  v.  Smythies 
Calder  v.  Rutiierford 
Caldwell  v.  Cassidy 
V.  Drake 
V.  Murphy 
V.  Shepherd 
Calhoun  v.  Vechio 
Call  V.  Ward 
Callagan  v.  Hallett 
Callen  v.  Thompson 
Callo  V.  Brouncker 
Callow  V.  Lawrence 
Calvert  v.  Gordon 
Calvin's  Case 
Calye's  Case 


Page 

46 

*13,  *20,  24 

472 


12 

363,  391 

414 

442 

94 

499 

618- 

215 

47 

548 

235 

430 

29 

227 

305 

690 

539 

462 

252 

363 

442 

521 

218 

517 

324 

*  627,  631 

Cambridge  Ins.  for  Savings  v.  Lit- 

tlefield  308 

Camden  &  Amboy  Railroad  ttc.  Co. 

V.  Belknap  653 

Camden  &  Araboy  Railroad  Co.  v. 

Baldauf  707,  710,  718,  719 

,      V.  Burke  ,         691 

Cameron  v.  Baker  260 

Camidge  v.  Allenby  ^         218,  224,  225 

Cammack  v.  Johnson  *176,  178 

Cammer  v.  Harrison  230 

Camp  V.  Camp  455 

V.  Grant  -180 

V.  Scott  -217 

Campbell  v.  Butler  -  206 

V.  Campbell  342 

V.  Hall  67 

V.  Knapp  *497 

V.  Leach  *  7 1 

V.Lewis  *  199,  *  201 

V.  Mesier  •  *  33 

V.  Morse  637 

V.  Stakes  -264 

Canal  Bank  v.  Bank  of  Albany  219,  220 

Canal  Fund  v.  Perry  378 

Cantield  r.  Hard  *172 

V.  Vaughan  493 

Cannon  r.  Alsbury  276,-376 

d 


Page 
Cannon  v.  Mitchell  416 
Canover  v.  Cooper  258 
Cany  v.  Patton  295,  302 
Cape  Fear  Bank  v.  Stinemetz  238 
Capel  V.  Thornton  420 
Garden  t-.  General  Cemetery  Co.  *  123 
Carle  v.  Hall  *  92 
Carleton  v.  Leighton  438 
Carley  v.  Vance  227 
V.  Wilkins  464 
Carnegie  v.  Morrison  222,  390,  391 
Carnochan  v.  Gould  467 
Carpenter  v.  American  Ins.  Co.       *  64 
V.  Dodge  358 
V.  Thompson  428 
Carpue  v-  L.  &  B.  Railway  Co.    695,  699 
Carr  v.  Ellison  422 
V.  Jackson  55 
r.  King  304 
y.  Roberts  110 
V.  The  L.  &  Y.  Railway  Com- 
pany 707,  715,  718 
Canington  v.  Cantillon  163 
Carrol  v.  Blencow  306 
Carroll  v.  N.  Y.  &  X.  H.  R.  R.  Co.  702 
V.  Weld  -  206 
Carruthers  v.  West  215,  216 
Carson  v.  Blazer  430 
Carter  w.  Burley  -233,238 
V.  Burris  453 
V.  Carter  300 
V.  Rollard  256 
V.  Southall  163 
V.  Stennel  474 
V.  Toussaint  443 
V.  Walker  *475 
V.  Whalley  143 
V.  United  Ins.  Co.  _    193 
Carthrae  v.  Brown  '  ,    31 
Cartwright  v.  Cooke  373 
V.  Rowley  649 
Carwick  v.  Vickery  *  164 
Carviile  v.  Crane  500 
Gary  v.  Curtis  67 
V.  Gruman  *475 
V.  Matthews  117 
Casamajor  v.  Strode  417 
Casborne  v.  Dutton  208 
Case  V.  Boughton  355 
V.  Hart  *  137 
V.  Mechanics'  Banking  Asso- 
ciation -  206 
V.  Winship  455 
Casey  v.  Brush  *  140 
Cash  V.  Giles  -475 
Cassel  V.  Dowes  222 
Cassiday  v.  McKenzic  *61 
Castello"  V.  Bank  of  Albany  *  602 
Castleman  v.  Holmes  506 
Caswell  V.  Coare  *475 
V.  Districh  *  137 


XXXVlll 


INDEX   TO    CASES   CITED. 


Page 

Catin  V.  D'Orgcnoy  346 

Catley  v.  Wintringham  666 

Catlin  V.  Barnard  30 

i;.Bell  *69,  *72,  *84 

Caton  V.  Rumney  645 

V.  Shaw  501 

Catskill  Bank  v.  Gray  133 

V.  Messenger  162 

Catt  V.  Howard  167 

Cattlin  V.  Hills  702 

Cave  V.  Coleman  464 

Cavodc  V.  McKelvey  364 

CaudcU  V.  Shaw  306 

Caul  V.  Gibson  379 

Causten  v.  Burke  139 

Cayle's  Case  626 

Cayuga  Bank  v.  Hunt  222 

Cayuga  County  Bank  v.  "Warden      235 

Central  Bank  v.  Allen  226,  230 

Chace  v.  Brooks  513 

Chadwick  v.  Madon  *  54 

Chadworth  y.  Edwards  *76 

Chaffee  v.  Jones  *  33,  *  35,  *  36 

Chalmers  v.  Lanior  213 

Chamberlain  v.  Chandler  697 

V.  Farr  443 

V.  Williamson       110,  553 

Chambers  v.  Crawford  469 

V.  Griffiths  417 

V.  Minchin  28 

Champion  v.  Bostick  -  136,  700 

Chancellor  v.  Wiggins  458 

Chandelor  v.  Lopus  463,  466 

Chandler  v.  Drew  215 

V.  Belden  -  239 

V.  Brainard  *  164 

V.  Fulton  477,  479,  489 

Channel  v.  Fassitt  *  131 

Chanoine  v.  Fowler  235 

Chanter  v.  Hopkins  470 

V.  Leese  19,  26 

Chapel  V.  Hickes  387,  388 

Chapin  v.  Lapham  370 

Chaplin  v.  Hawcs  702 

Chapman  v.  Crane  535 

V.  Keane                -  235 

V.  Murch  463,  464 

V.  Searle  483 

V.  Speller  457 

V.  Sutton  509 

V.  Walton  *  73 

Chappel  V.  Marvin  443 

Chappie  V.  Cooper  245 

Chard  v.  Fox  235 

Charles  v.  Marsden  216 

Charlestown  v.  Hubbard  393 

Charlton  v.  Lay  386 

Charnley  v.  Winstanley  *  61 

Charter  y.  Trevelyan  *75 

Charters  v.  Bavntim  246 

Chase  v.  Dwinal  322 


Page 
Chase  v.  Garvin  139,  *  140 

V.  Washburn  64 

Chase's  Exr.  v.  Burkholder  381 

V.Washington  Ins.  Co.  635 
Chastain  v.  Bowman  333 

Chater  v.  Beckett  380 

Chedworth  v.  Edwards  76 

Cheek  v.  Roper  221 

Cheesman  v.  Excell  621 

Cheetham  v.  Hampson  608 

Chenowith  v.  Diekinson  618 

Cherry  v.  Heming  *  96,  -  529 

Chesapeake  &  Ohio  Canal  v. 

Knapp  540 

Cheshire  v.  Barrett  -  268,  -  273 

Chester  Glass  Company  v. 

Dewey  377 

Chestcrman  v.  Lamb  *  475 

Chestnut  Hill  Turnpike  v.  Rutter,  *  118 
Chevallier  v.  Straham  634,  637,  641 
Chevaillier  v.  Patton  638 

Chew  ?;.  Gary  *347 

Chick  1-.  Pillsbury  -2.33 

Chickering  v.  Fowler  667,  668,  670 

Chicopee  Bank  v.  Chapin  *  217 

Child  V.  Hardyman  295 

V.  Morley  '*  33 

Childs  V.  Monins  *  102,  108 

Chiles  V.  Nelson  407 

Chilson  V.  Philips  257 

Chippendale  y.  L.&Y.  Railway  Co.  714 
Chism  V.  Woods  458 

Chiswell  V.  Gray  -180 

Cholmondeley  v.  Clinton  *  98 

Chouteau  v.  Merry  305 

V.  Steamboat  657 

Chouteaux  v.  Leach  ^  50 

Chorley  v.  Bolcot  539 

Christie  v.  Griggs  691,  695,  698 

Christy  v.  Douglas  539 

V.  Smith  623 

Chudleigh's  Case  100 

Chumar  v.  Wood  443 

Church  I'.  Barlow  216,234 

V.  Brown  426 

V.  Clark  221 

V.  Imperial  Gas  Co.  *  118 

V.  Knox  *  176,  *  177 

V.  Landers  288 

V.  Mar.  Ins.  Co.  *  75, 115 

V.  Sparrow  -  158 

Churchill  v.  Rosebuck  702 

Citizen's  Bank  D.Nantucket  Steam- 
boat Co.         645,  650,  *  652,  655 
City  of  Buffalo  v.  Holloway  93 

Clagett  V.  Salmon  162,  237 

Glamorgan  v.  Lane  269,  272,-273 

Clanccy  v.  Robertson  520 

Claridge  v-  Mackenzie  429 

Clark  V.  Barnwell         637,  638, 648,  677 
V.  Bigelow  *  2-33 


INDEX   TO   CASES    CITED. 


XXXIX 


Page 

Clark  V.  Boyd 

*205 

*212 

V.  Burdett 

-508 

V.  Bush 

503 

V.  Clark 

558 

V.  Dibble 

*140 

V.  Dignum 

*71 

V.  Dinsmore 

27 

V.  Ely 

*217 

r.  Farmers  Man.  Co.  240 

V.  Faxton  G43,  710 

V.  Foxcroft  495 
V.  Guardians  of  Cuckfield 

Union  *118 
V.  Houjjham  1 1 1 
V.  King  208 
W.Lyman  *  174,  *  177 
V.  Mauran  482 
V.  McDonald  333,  692 
V.  Morse  443 
?;.  Reed  *  164 
V.  Remington  502 
V.  Russel  368 
V.  Shee  240 
i;.  Sigourney  *205,  *212 
V.  Small  355,  496 
V.  Smith  540 
V.  Spence  606,  622,  722 
V.  Swift  110 
Clark's  Exs.  v.  Van  Riemsdyk        *44 
Clarke  v.  Courtney  *  48 
V.  Henty  236 
V.  Hutchins  446 
V.  Leslie  246 
V.  Morey  325 
V.  Perrier  *  69 
V.  Thompson  195 
Clarkson  v.  DePeyster  103 
V.  Han  way  356 
Clay  V.  Harrison  479,  481 
r.  Cothell  215 
V.  Crowe  241 
V.  Wood  701,  702 
Ex  parie         ^  - 1 80 
Clayards  v.  Dethick  '  702 
Clayton  v.  Adams  306 
V.  Hunt  719 
V.  Kvnaston  23 
V.  Warden  560,  561,  562 
Cleaves  v.  Stockwell  *  73 
Cleghorn  v.  Ins.  Bank  of  Colum- 
bus -  180 
Clement  v.  Clement  *  191,  *  197 
V.  Henley  23 
V.  Mattison  293,  297 
V.  Reid  414 
r.  Repard  215 
Clements  v.  Smith's  Admrs.  -475 
V.  Williams  249 
Clerk  V.  Blackstock  1 1 
Cleveland  v.  Covington  34 
Clifford  V.  Burton  292 


Page 
Clifford  V.  Laton  288,  294,  295 
Clifton  V.  Phillips  328,  333 
Clinen  y.  Cooke  43,*  95 
Clinton  v.  York  258 
Clopper  t'.  Union  Bank  of  Mary- 
land 216 
Cloud  V.  Hamilton  258 
Clowes  V.  Brooke  246 
V.  Clowes  565 
V.  Van  Antwerp  115 
Clute  I'.  Banow  75 
V.  Wiggins  631,  632 
Coates  V.  Stephens  473 
V.  Wilson  246 
Coats  V.  Holbrook  324 
Cobb  V.  Abbot  700 
V.  Becke  *  73 
V.  Page  496 
Cobban  v.  Downe  *  652 
Cobbett  V.  Hudson  288 
Cobden  i'.  Bolton  719 
Cobham,  ex  parte  -  180 
Coburn  v.  Pickering  443 
V.  Ware  389 
Cochran  v.  Perry  *  171 
Cocke  V.  Bank  of  Ten.  *  164 
Cockell  V.  Taylor  362 
Cocker  V.  Franklin  Hemp  &  Flax 

Man.  Co.  .      450 
Cockran  v.  Irlam  *  72,  *  84 
Coddington  v.  Davis  226,  *  233 
Coe  V.  Clay  422 
V.  Smith  522 
Coffin  V.  Jenkins  *  151,  318 
!>.  Lunt  -433 
Coggs  V.  Bernard       372,  569,  571,  573, 
583.  584,  590,  593,  634,  637,  694 
Cohea  v.  Hunt  222 
Cohen  v.  Hume  645 
Colcock  V.  Ferguson  243,  261 
V.  Goode  458 
Cole.r.  Cottingham  546,  547 
V.  Davies  442 
V.  Goodwin        673,  704,  706,  707, 
709,  710, 713 
V.  Jessup  237 
V.  Kerr  448 
V.  Pennoyer  244 
V.  Robbins  31 1 
V.  Saxby  270,  271,  309 
V.  Turner  *  20 
V.  Wade  101 
Coleman  v.  Sherwin  1 1 
Coles  t'.  Coles  *  127,  IGO 
V.  Gurney  163 
V.  Trecothick     43,  75,  *  75,  *  95, 
362,414,  415 
Colgin  V.  Henley  366 
Collard  v.  Groom  417 
Collier  V.  Baptist  Educational  So- 
ciety 379 


xl 


INDEX   TO    CASES    CITED. 


Page 

Collingwootl  V.  Pace 

324 

Collins  V.  Barrow 

422,  471 

V.  Bliintem 

380 

V.  Butler 

229 

V.  Canty 

*434 

V.  Forbes 

615 

V.  Godcfroy 

363 

V.  Lemasters 

12 

V.  Martin         *  80,  -  206,  *  212 

V.  Myers  455 

V.  Pellerin  443 

V.  Price  527 

v.  Prosser  12,162 

V.  Westburv         i  32 1 

V.  Woodruff  610 

Collman  v.  Collins  683 

Collyer  1-.  Fallon  194 

Colt%;.  McMechcn  637 

Colville  V.  Bcsley  386 

Columbus  V.  Howard  -  602,  608 

Coman  v.  State  513 

Combe's  Case                         *  71,  *119 

Comegys  v.  Vasse  195 

Comfort  V.  Duncan  430 

Commex'cial  Bank  v.  Colt  *  196 

V.  Cunningham    216 

■  V.  Hamer  222 

?;.Kortright*50,*118 

V.  Martin  592 

V.  Nolan  375 

V.  Wilkins  *  174, 

*175,  *177 

Commissioners  v.  Perry  377 

Commonwealth  v.  Collins  306 

V.  Gushing  263 

V.  Gamble  263 

V.  Hantz  263 

V.  Harrison  263 

i;.  Manley  *212 

V.  Murray  257,  263 

V.  Power  69G 

V.  Turner  326,  334 

Comp  V-  Henchman  75 

Comstock  V.  Farnum  *- 196 

r.  Hutchinson  *475 

V.  Rayford  443 

Comyns  v.  Boyer  *3S2 

Couant  V.  Guesnard  345 

V.  Baymond  535,  536 

V.  Seneca  County  Bank    *  199 

Cone  V.  Baldwin  214 

Conger  v.  King  75 

Conkcy  v.  Hojikins  *  497 

Conn  V.  Coburn  246,  494 

V.  Wilson          '  *553 

Conner  i'.  Henderson         '  463 

V.  Coffin  -  431 

Connerat  v.  Goldsmith  494 

Connerv  v.  Kendall  215,  218 

Conollv  V.  Kettlewell  500 

Conroe  v.  Birdsall  261,  264,  274 


Conroy  v.  Warren 
Const  V.  Harris 
Constable  v.  Cloeberry 
Constantia,  The 
Conwcll  ?i.  Sandridge 
•Cook  V.  Bank  of  Louisiana 


Page 

-206 

*  108 

12 

477 

*171 

47 


V.  Bradley    8,  259,  355,  360,  361, 

370 

V.  Champlain  Trans.  Co.         701 

V.  Darlm  230 

V.  Husted  530 

V.  Litchfield         '  235 

V.  Mosely  463 

V.  Satterlee  208 

V.  Wotton  18 

Cooke  V.  Booth  422 

V.  Callaway  228 

V.  Clayworth  311 

V.  Colehan  211 

V.  Cooke  343 

V.  French  235 

V.  Oxley  406 

Cooke's  Case  432 

Cookes  V.  Mascall  555 

Coolidge  V-  Brigham  458 

t'.  Pavson  *  217,  222 

t'.  Buggies  *196 

Coombs  I'.  Emery  *382 

Coon  V.  Syracuse  &  Utica  R.  R.       528 

Cooke  V.  Eyre  *  148,  *  153 

Cooper  V. 452 

V.  Martin  257,  359 

V.  Phillips  248,  527 

V.  Rankin  42 

V.  Stevenson  *  98 

V.  Twibill  471 

V.  Willomatt  606 

Coopwood  V.  Wallace  539 

Cope  V-  Burt  565 

V.  Albinson  400 

V.  Cordova  666,  669 

V.  Rowlands  *  382 

V.  Smith  509 

Copeland  r.  Mercantile  Ins.  Co.  46 

V.  Bosquet  -449 

V.  Wattss  *430 

Copis  r.  Middleton  495,  496 

Copland,  £jr  parte  -180 

Copp  V.  McDugall  225 

Coppin  V.  Braithwaite  697 

V.  Craig  83,  390,  419 

r.  Walker  419 

Coppock  r.  Bower  365 

Cork  I'.  Baker  547 

Cork  &  Bandon  Railway  v.  Caze- 

nove  281,  282 

Corlies  v.  Gumming  *81 

Cornfoot  v.  Fowke  52 

Cornfute  i'.  Dale  333 

Cornwall  v.  Hoyt  306 

V.  Haight  *441,  *449 


INDEX   TO    CASES  CITED. 


xli 


Page 
Cornwall  v.  Wilson  *  7 1 ,  *  8 1 

Cornwell  v.  Voorhees  623 

Corp  V.  McComb  230,  -  233 

Corps  V.  Robinson  1 63 

Cortelyou  v.  Lansing  594 

Cory  r.  Cory  31 1 

Coster  r.  Thomason  163 

Costigan  v.  Newland  67 

V.  The  Mohawk  &  Hudson 

Railroad  Co.  520 

Cotes  V.  Davis  293 

Cothay  i'.  Fennell  *  49,  53 

r.  Tute  446 

Cotterill  r.  Starkey  700,  701 

Cottin  V.  Blane  495 

Cottrill  y.Van  Duzen  *  134,  *  151,  *152 

Coty  I'.  Barnes  453,  455 

Couch  V.  Mills  24 

Coulston  V.  Carr  379 

Coulter  V.  Robertson  380 

Courcier  v.  Ritter  *  69 

Couturier  v.  Hastie  79,  437,  500 

Cowas-jee  v.  Thompson  486 

Cowel  V.  Simpson  *  84 

Cowell  V.  Edwards  .  34,  ^  35 

V.  Watts  109 

Coules  V.  Harts  235 

Cox  V.  Adams  520 

V.  Kitchin  306 

v.  McBurney  126,  *  130 

V.  Midland  Railway  Co.  43 

V.  Prentice  67 

Coxe  V.  Harden  485 

Coyle  V.  Fowler  355,  357 

Cozzins  V.  Whitaker  458,  467,  474 

Crabtrcc  v.  May    •  262 

Craft  V.  Isliam  502,  503 

Cragg  V.  Bowman  295 

Craig  V.  Leslie  115 

V.  Childress  641 

Cramw.  Cadwel!  162 

V.  French  178 

Cramer  v.  Bradshaw  465 

Crane  v.  Conklin  311 

V.French  *177 

Cranston  v.  Clarke  423 

Crantz  v.  Gill  247 

Craven  r.  Ryder  *490 

Crawford  r.  Louisiana  State  Bank  *73 

W.Smith  *  441, -441 

V.  Stirling  162 

Crawshay  i:  Collins  *  130,  *  170,-  173 

i:  Fades  483 

V.  Maule  *127,  *  131,*  170, 

*171,-173 

Craythorne  v.  Swinburne  *33,  *36, 495 

Cremer  v.  Higginson       162,  501,  *  508 

Cresingcr  v.  Lessee  of  Welch  272,  -  273 

Cresson  v.  Stout  432 

Cripps  V.  Golding  379 

d* 


Crisp  V.  Churchill  246 
V.  Gamel  379 
Crocker  v.  Higgins  391 
y.  Whitney      195,  *  196,  *  198 
Crockford  v.  Winter  *  63 
Croft  I'.  Alison  87 
Crofts  I'.  Beale  •          *217 
V.  Waterhousc  691,  693,  698 
Crook  V.  Jadis  214 
Croom  V.  Shaw  *  52 
Crosby  v.  Fitch  645 
V.  Wyatt  573 
Crosley  v.  Arkwright  381 
Cross  V.  Andrews  310,  626 
V.  Black  329 
Crosse  v.  Androes  263 
V.  Gardner  456 
V.  Smith  *233 
Crouch  V.  The  London  &c.  Rail- 
way Co.  649,  650,  710 
Crow  V.  Rogers  389 
Crowder  v.  Austin  418 
Crowdus  V.  Shelby  *35 
Crowell  V.  Gleason  320 
Crowfoot  V.  Gurney  188 
Crowhurst  v.  Laverack  363 
Crowley  v.  Vitty  *  429 
Cruger  v.  Armstrong  -  206 
Crump  V.  U.  S.  Mining  Co.                 52 
Crusoe  v.  Bu^byA  426 
Crymeo  v.  Day  ^  *  268 
Cud  V.  Rutter  414 
Cuify  V.  Castillon  327,  328 
Cullcn  V.  Duke  of  Queensbeny     *  106 
Culver  V.  Ashley  47 
Cumber  v.  Wane  -  191 
Cumberland  Bank  v.  Hann  215 
Cuming  v.  Hill  533,  534 
Cummings  v.  Denett  355 
w.  Powell  245,  *268,  2C9 
Cundell  v.  Dawson  *  382 
Cunlifte  y.  Booth  214 
Cunningham  v.  Cunningham  336 
V.  Irwin  297 
V.  Knight  263 
Curling  V.  Chalklen  503 
Currier  v.  Currier  448 
V.  Hodgdon  195 
Currv  V.  Rogers  378 
Curtin  v.  Patton  270,  274 
Curtis  V.  Drinkwatcr  698 
I'.  Hall  311 
V.  Vernon  *  112 
Curtis's  Ex'r  v.  Bank  of  Somerset     108 
Cushman  v.  Bailey  133 
t>.  Holyoke  -441 
Cussons  V.  Skinner  526 
Cutler  V.  Close  387 
V.  Everett  496 
V.  How  363 


xlii 


INDEX    TO    CASES   CITED. 


Cutler  V.  Hinton 
V.  Johnson 
V.  Winsor 

Cutter  V.  Copeland 
V.  Powell 
V.  Reynolds 

Cutts  V.  Perkins 
V.  Salmon 

Cuxon  V.  Chadley 

Cuyler  v.  Stevens 


D. 


Page 
500 
363 

*136 
443 
522 
355 

*196 

*75 

*189,  190 

234,  235 

163,  *164 
479 
*76 
426 
417 
646 
558,  564 
*84 


Dabneyi'.  Stidger 

D'Aquila  v.  Lambert 

Dails  V.  Lloyd 

Dalby  v.  Hirst 

V.  PuUen 

Dale  V.  Hall 

Dalrymple  v.  Dalrymple 

Dalton  V.  Irvin 

Damon  v.  Inhabitants  of  Granby        94 

V-  Osborne  -441 

Dana  r.  Coombs  -273 

V.  Lull  155,  *  172 

V.  Sawyer  222 

Dancey  v.  Richardson  623 

Dane  v.  Kirkwall  313 

Danforth  v.  Scoharie  Turnpike  Co.  *  1 1 8 

Daniel  v.  Adams  40,  *  50,  *  51 

r.  Ballard      #  34,  37 

V.  Bowles  546,  548 

V.  Mitchell  462 

Daniels  v.  Pond  431,  432 

D'Anjou  V.  Deagle  655 

Dann  v-  Dolman  381 

I'.  Spurrier  428 

Darby  v.  Boucher  246,  293 

Darbyshire  v.  Parker  234 

Darling  w.  March  162,  *  164 

Darst  V.  Roth  94 

Dartnall  v.  Howard         *  73,  *  74,  373 

Daubigny  v.  Duval  *  51,  79 

V.  Davallon  325 

Daucc  V.  Girdler  507 

Davenport  v.  Gear  139 

V.  Rackstrow  28 

V.  Woodbridge  *  198 

Davey  v.  Chamberlain  603 

V.  Mason  655 

Davies  v.  Davies  537 

V.  Humphreys   *  33,  *  36,  *  37, 

393 

V.  Mann  701,  702 

V.  Smith  271,  309 

Davis  V.  Allen  *  145 

V.  Boardman  53 

r.  Bradford  393 

V.  Bradley  -449 

V.  Coburn  *  197 

V.  Connop  430 


Page 

Davis  V.  Curry  330 

V.  Dodd  241 

V.  Duke  of  Malborough  194 

V.  Emerson  34 

V.  Garrett  *  74 

V.  Gowen  -  1 58 

V.  Hanly  -233 

V.  Higgins  509 

V.  Hill  -441 

1-.  Huggins  571 

V.  Hunt  457 

V.  Jaquin  346 

V.  Jones  *  433 

V.  Lane  .  *61,  *  173,  218 

V.  Maxwell  579,  522 

V.  Meeker  463 

V.  Morgan  369 

V.  Smith  270 

V.  Svmonds  414 

V.  Willan  719 

V.  Wood  331 

Davoue  v.  Fanning  75,  115 

Dawes  v.  Boylston  *  196 

V.  Cope  442 

.    V.  Howard  252,  256,  257 

V.  Peck  446 

Dawkes  V.  Lord  De  Lorane       208,211 

Dawson  v.  Chamney  624,  625 

V.  CoUis  *  475 

V.  Lawes  510 

V.  Morrison  43 

V.  Real  Estate  Bank  512 

Day  V.  Newman  415 

V.  Ridgway  572 

Dean  v.  Allallev        ,  *  433 

V.  Hall    "  -  206 

V.  Keate  -  602 

V.  Mason  386,  460,  467,  472 

V.  Newhall  23,  24 

V.  Richmond  567 

Deane  v.  Annis  251 

Dearborn  v.  Dearborn  *  98 

V.  Bowman  395 

V.  Turner  450 

Deason  v.  Boyd  -  268,  -  273 

De  Begnis  v.  Armistead  *382 

Decks  V.  Strutt  107 

Deering  v.  Chapman  380 

V.  Winchelsea  *36 

Deer  Isle  v.  Eaton  393 

Deerly  v.  Mazarine  306 

De  Berdt  v.  Atkinson  225,  *  233 

De  Berkom  I'.  Smith  *164 

De  Boom  i'.  Priestly  542 

De  Bouchout  v.  Goldsmid  *  51,  79 

De  Bras  v.  Forbes  215 

De  Briar  v.  Minturn  520 

De  Camp  v.  Stevens  524 

Decharms  v.  Horwood  26 

Deckard  v.  Case  155 


INDEX   TO    CASES    CITED. 


xliii 


Page 

Decker  v.  Livingston  22 

Decreet  y   Burt  *36 

Dedham  Bank  v.  Chickering  380 
De  Forest  v.  The  Fire  Ins.  Co.        *  80 

De  Forrest  v.  Wright  89,  93 

Defrance  v.  Austin  *  532 

Defreeze  v.  Trumper  458 

De  Gaillon  v.  L'Aigle  *  82,  306 

Delafield  v.  Illinois            40,  *  50,  *  52 

Delamater  i'.  Miller  235 

Delano  v.  Bartlett  21 1 

V.  Blake  -273 

Delery  v.  Mornet  330 

De  Lisle  v.  Priestman  *  602 
Delmonico,  Assistant  V.  C   v. 

Guilkume  126 

Delonev  v   Hutcheson  *  127 

De  Medeiros  v.  Hill  446 

Demi  v.  Bossier  430 

De  Mott  V.  Laraway  645,  659 

Demott  V.  Swain  163 

Den  V.  Hanimel  *  76 

Den  d.  Freeman  v.  Heath  *  428 

d.  Howell  V.  Ashmorc  *428 

Denegre  v.  Hiriart  235 

Denman  v.  Bloomer  *50 

Denn  d.  Burne  v.  Eawlins  -  433 

Dennett  v.  Cntts  539 

V.  Wyman  -217 

Denew  v.  Daverell  *  74,  *85 

Dennie  v.  Walker  225 

Dennis  v.  Morrice  *  233 

Denny  u.  Cabot  ^136 

V.  Lincoln  454 

V.  Palmer  224 

Denston  u.  Henderson  *239 

Denton  i-.  East  Anglian  Railway  *  118 

V.  Noves  97 

De  Peyster  r.'Clarkson        *  103,  *  104 

Depuy  V.  Swart  308,  309 

Derby  v.  Phelps  547 

De  Ixiddcr  i;.  McKnight  -441 

V.  Schermerhorn  11 

De   Rothschild  v.  R.   ]\I.   Steam 

Packet  Co.  648 

Derwort  v.  Loomer  690,  691,  693 

Desha  v.  Holland  142 

V.  Sheppard  - 173 

Despatch  Line   v.   Bellamy  Man. 

Co.  47,  453 

De  Tastet  v.  Baring  *  239 

De  Tastett  v.  Crousillat  *74 

De  Tollenere  v.  Fuller  608 

Devon  r.  Pawlett  110 

Dewees  v.  Morgan  467 

De  Wolf  V.  Murray  235 

Dhegetoft  v.  London  Ass.  Co.  193 

Dickenson  r.  Naule  *112 

Dickey  v.  Linscott  524 

Dickinson  v.  Follett  474 

I'.  Lctrare  155 


Page 
Dickinson  u.  Naule  419 

V.  Survivors  of  Bolds 

and  Rhodes  133 

r.  Valpy       *  122,  124,  *  168 

Dickson  v.  Hammond  678 

V.  Jordan  440,  470 

V.  Zizinia  472 

Dietterich  v.  Heft      *  103,  *  104,  *  115 

Diffedorffer  v.  Jones  430 

Diggle  V.  London  &  BlackwcU  R.  R.  *1 1 8 


Diik  V.  Keighley 

261 

Dillard  v.  Moore 

459 

Diplock  V.  Blackburn 

*75,  77 

Dix  V.  Cobb                       193, 

195,  *  196 

V.  Otis 

124 

Dixon  V.  Bell 

-532 

V.  Durham 

665,  671 

V.  Hurrell 

303 

V.  Meyers 

-441 

V.  Ranken 

*.529 

V.  Stansfield 

*84 

?'.  Yates  *441, 477, 483,487, *490 

Dob  V.  Halsey 

26 

Dobell-i'.  Hutchinson 

416,  452 

Dodd  I'.  Acklom 

430 

Dodge  V.  Adams 

361 

r.  Bank  of  Kentucky 

-233 

V.  Burdell 

355,  496 

V.  Perkins 

77 

r.  Tileston 

*85 

Doe  V.  Abernathy 

272 

d.  Nash  V.  Birch 

427 

d.  Higginbotham   v.    Barton     428, 

429 

d.  Boscawen  v.  Bliss 

427 

d.  Plevin  v.  Brown 

429 

V.  Burt 

421 

d.  Campbell  v.  Hamilton 

23 

V.  Carter 

426 

d.  Lewis  v.  Cawdor 

428 

d.  Tomes  v.  Chamberlaine      -433 

V.  Clarke 

427,  -433 

V.  Cox 

-433 

d.  Williams  v.  Cooper 

428 

(/.  Macartney  v.  Crick 

-433,  434 

d.  Fisher  v.  Cuthell 

-433 

d.  Neville  v.  Dunbar 

434 

d.  Davies  v.  Evans 

428,  -433 

d.  Elliott  V.  Hulme 

-4.33 

d.  Calvert  v.  Frowd 

428,  -433 

V.  Gallowuy 

422 

V.  Glenn 

*112 

V.  Goldwin 

45 

d.  Harrop  v.  Green 

*433 

d.  Grubb  V.  Grubb 

428 

V.  Guy 

107 

V.  Hawke 

426 

d.  Kindcrsley  v.  Hughes 

-433 

d.  King  V.  Gratton 

-  433 

V.  Hulme 

163 

d.  Huddleston  v.  Johnston      *433 

xliv 


INDEX   TO    CASES   CITED. 


Doe  d.  Moore  v.  Lawder 
d.  Bennett  v.  Long 
d.  Biiross  V.  Lucas 
d.  Lystcr  v,  Goldwin 
V.  Martin 


Page 
-433 

428 
*434 
-433 

*63 


d.  Williams  v.  Pasquali  429,  -433 
d.  Dean  and  Chapter  of  Ro- 
chester V.  Pierce  *  434 
V.  Pitcher  381 
d.  Pitt  V.  Laming                 426,  623 
d.  Whitehead  v.  Pittmann          428 
c?.  Shore  y.  Porter                     *433 
d.  Knight  v.  Quigley                -433 
d.  Gatehouse  v.  Kees                   427 
d.  Thomas  v.  Roberts                  243 
V.  Robinson                        *  71,  *  73 
V.  Tnniere  392 
d.  Phillips  V.  Rollings              -433 
d.  Leeson  v.  Sayer                    -433 
d.  Williams  v.  Smith               *  433 
d.  Knight  i'.  Sraythe                    428 
d.  Gray  v.  Stanion                        428 
d.  Aslin  V.  Soramersett            -433 
d.  Mann  v.  Walters                   -  433 
d.  Bradford  v.  Watkins             *434 
d.  Martin  v.  Watts                     -  433 
d.  Jefferies  v.  Whittick               428 
d.  Hull  V.  Wood                           429 
d.  Ambler  v.  Woodbridge           427 
Doggett  V.  Emerson                            462 
Dogget  V.  Vowell                                371 
Dole  V.  Gold                                         235 
V.  Stimpson                                 444 
V.  Weeks                          *205,  218 
Donallen  v.  Lennox                            380 
Donath  v.  Broomhead                 482,  484 
Doncllan  v.  Read                              -  529 
DoneLson  v.  Posey                           *  174 
Doner  v.  Stauffer                              *  177 
Donnington  v.  Mitchell                      285 
Doremus  i'.  McCormick  161 
Doorman  v.  Jenkins  *  73,  372,  574,  575, 
584,  633 
Dormer  v.  Williams                             565 
Dorman  r.  Bigelow                             512 
Dorr  V.  N.  J.  Steam  Nav.  Co.  706,  710, 

718 

Dorsey  w.  Gilbert  114 

V.  Goodenow  304 

V.  Jackman  458 

V.  Rockwood  374 

Doty  V.  Wilson  395 

Doublcday  v.  Muskett  *122,  *  123 

Dougal  V.  Cowles  160 

Dougherty  v.  Van  Nostrand  *  130 

V.  Western   Bank   of 

Georgia  227 

Douglass  V.  Howland  502 

V.  Reynolds  -514 

V.  Vincent  555 

Douglas  r.  Winslow  *  174,  *  175 


Page 

Dow  V.  Sayward  *  175,  *  179 

Down  V.  PLilling  214,  215,  218 

Downer  v.  Rowell  615 

Downing  v.  Funk  367 

Downs  V.  Planters  Bank  -  233 

Dows  V.  Cobb  -239,  660,  661 

V.  Greene  43 

Drake  u.  Elwvn  *  132,  *  166 

V.  Raniey  *  136 

V.  Ramsey  272 

Drayton  i-.  Dale  220 

Dresser  v.  Ainsworth  458 

Drewe  v.  Hanson  417 

Drinkwater  v.  Goodwin  83 

V.  Tebbetts  231.  *233 

Druid,  The  88 

Drummond  v.  Burrell  -  529 

V.  Hopper  311 

V.  Wood  *  80 

Drury  v.  Defontaine  ,  *  382 

V.  Drury  277 

V.  Hooke  547 

Dry  V.  Davy  495,  507 

Dublin  &  Wicklow  R.  R.  v.  Black 

271,  282 

Dubois  V.  Del.  &  Hud.  Canal  Co.     542 

V.  Kelly  431,  432 

Dubose  V.  Wheddon  261 

Dudgeon  v.  Teass  610 

Dudley  v.  Smith  693,  697 

V.  Warde  *433 

Duffr.  Budd  684,711,714,719 

Duffee  V.  Mason  464 

Duke  of  Beaufort  v.  Neeld  41 

Duke  of  Norfolk  v.  Worthy  53,  416,  451 

Dulty  V.  Brownfield  -268,  276 

Dumper  v.  Symms  117 

Dunbar  v.  Tredennick  *  75 

V.  Williams  336,  527 

Duncan  v.  Course  238 

1-.  McCullough  226,311 

V-  Rail  Road  Co.  608 

r.  Tombeckbee  Bank  163 

V.  Topham  407,  408 

Duncklee  v.  Greenfield  Steam  Mills 

Co.  *196 

Duncomb  v.  .Tickridge  259 

Duncuft  V.  Albrecht"  414 

Dundas  v.  Dutens  554 

Dunham  v.  Rogers  *  136 

Dunkiee  v.  Locke  539 

Dunkley  v.  Fanis  *  63 

Dunlap  V.  Hunting  578 

V.  Thompson  -  233 

Dunlop  V.  Higgins  407,  408 

V.  Munroe  '  623 

V.  Waugh  463 

Dunn  r.  Savles  -  529 

r.  Sice  34 

r.  Snell  *196,  *197 

Dunnage  v-  Joliifec  666 


INDEX  TO    CASES    CITED. 


xlv 


Dunnell  v.  Mason 
Dunscomb  v.  Dunscomb 
Durant  v.  Titley 
Durell  V.  Wendell 
Dui'ham  v.  Arledge 
V.  Price 
V.  Wadlington 
Durnford  v.  Lane 
Dusenberry  v.  Ellis 
Dutton  V.  Gerrish 

V.  Morrison 

V.  Poole 

V.  Solomonson 
Duvall  V.  Craig 

V.  Farmers  Bank 
Dwight  V.  Blackmar 

V.  Brewster 

V.  Emerson 
Dye  V.  Kerr 
Dyer  u.  Clark 
Dykers  v.  Allen 
Dykes  v.  Blake 

E. 


Page 

79 

*104 

300 

24 

499 

226 

364 

-376 

55,  *58 

471 

173,  *  177,  -180 

389,  391 

446 

*54 

226 

75 

639,  643,  700,  720 

231 

*532 

126,  *128.  *  172 

600,  601 

417, 452 


415, 


Eaden  v.  Titchmarsh  12 

Eagle  V.  White  658,  673 

Eagle  Bank  v.  Chapin  234 

V.  Smith  219,  220 

Eagle  Eire  Co.  v.  Lent  274 

Eardlcy  v.  Price  527 

Earl  of  Bristol  v.  Wilismore  *  441 
Earl  of  Buckinghamshire  v.  Drury  277, 

281 

Earle  v.  Peale  246,  293 

V.  Reed  261 

Early  v.  Garrett  457,  473 
Eastern  Counties  Railway  Co.  v. 

Broom  117 

East  India  Co.  r.  Henchman  75 

V.  Hensley  40 

V.  PuUen  651 

East  Haddam  Bank  v.  Scovil  *  73 

Eastman  i'.  Coos  Bank  97 

V.  Wright  195 

Eastwood  V-  Brown  442 

V.  Ken  von  358,  361 

Eaton  y.  Bell       '  *102 

V.  Benton  *  532 

Eberman  v.  Reitzell  *  332 

Eccleston  v.  Clipsham  *  14 

Eddie  r.  Davidson  *177 

Eddv  V.  Herrin  320 

Edgell  V.  Hart  455 
Edger  v.  Knapp                          *  32,  *  35 

Edgerly  r.  Emerson  496 

Edick  V.  Crim  458 

Edie  V.  East  India  Co,  -  2 1 2 

Edmonson  v.  Davis  161 

V.  Stephenson  *  529 

Edson  V.  Fuller  222,  370 


Page 

Edwards  v.  Baugh  368 

V.  Brewer  479,  482 

V.  Burt  362 

V.  Davis  252,  260 

V.  Etherington  423,  471 

V.  Footner  *  63 

j>.  Harben  443 

V.  Hodding  67 

V.  McFall  143 

V.  Sherratt  650,  677 
V.  The   Great  Western 

R.  R.  Co.  649,  650 


295 

155,-180 

361 

11 

462 

*80 

47 

496 

-529 

227 

450 

693 

520 

458 

535 

486 

221 


Co. 


V.  Towels 
Egberts  v.  Wood 
Ehle  V.  Judson 
V.  Puvdy 
Eichelberger  v.  Barnitz 
Ekins  V.  Marklish 
Elam  V.  Carruth 
Elder  v.  AVarfield 
Elderton  v.  Emmens 
Eldred  v.  Hawes 
Eldridge  v.  Benson 

V.  Long  Island  R.  R 

V.  Rowe 

V.  AVadlcigli 

Ellen  V.  Topp 

Ellershaw  v.  Magniac 

Elford  V.  Teed 

Eliason  v.  Henshaw  399,  407 

Elkins  V.  Boston  &  Maine  R.  R.  639,  648 

V.  Parkhurst  *  382 

Elkington  i;.  Holland  *98 

Elliot  V.  Collier  285 

V.  Cooper  208 

Elliott  V.  Davis  94,  *  96 

V.  Giese  496 

V.  Gurr  563 

V.  Horn  263 

V.  Rossell  645 

V.  Swartwout  67 

Ellis  i".  Brown  -  206 

V.  Commercial  Bank         325,  229 

V.  Essex  jNIerrimack  Bridge      114 

V.  Hamlen  388,  522 

V.  Hunt  447,  *  485 

V.  James  681 

V.  Paige  -433 

V.  Schmoeck  *123 

V.  Sheffield  Gas  Consumers  Co.  89 

V.  Thompson  450 

V.  Turner  87,  708 

V.  Wild  221 

Ellison  V.  Chapman  139 

Elmore  v.  Stone  443,  444 

Elsee  ?'.  Gatward  586 

Eltham  v.  Kingsman  58 

Elting  V.  Vanderlvn  366 

Elton  r.  Brogden'  473,474 

V.  Jordan  473,  474 

Ex  parte  -180 


xlvi 


INDEX   TO   CASES  €ITED. 


Elwes  II.  Maw 
Emanuel  v.  Bird 
Emblin  v.  Dartnell 
Emerson  v.  Brigham 
V.  Harmon 
V.  Howland 
V.  Knower 
Emery  v.  Chase 
V.  Emery 
V.  Hersey 
V.  Neighbour 
Emly  V.  Lye 
Emmerson  v.  Heelis 


Page 
432 

-180 
226 
471 

-158 
520 
162 
355 
294 
685 
303 
*  147, *  157 
97,  417 


658, 


Emmett  v.  Norton  42,  43,  293,  301,  302 


Tottenham 
Emmons  v.  Littlcfield 

V.  Lord 
Emmott  r.  Kearns 
Empson  i\  Soden 
Ender  v.  Scott 
English  V.  Blundell 

i\  Harvey 
Enicks  v.  Powell 
Ensminger  v.  Marvin 
Envs  V.  Donnithorne 


*205 

356 

527 

368 

432 

464 

11,  *14,  26 

*  103,  *104 

*36 

-158 

12,  15,31 


Episcopal  Charitable  Society  v. 

Episcopal  Church  *118 

Eplerw.  Funk  219 

Erie  Bank  v.  Gibson  509 

Ernst  V.  Bartle  12 

Erwin  v.  Bank  of  Kentucky  443 

V.  Blake  *  99 

V.  Maxwell  464 

V.  Saunders  308 

Esdaile  v.  La  Nauze  41 

Eskridge  v.  Glover  399 

Esmay  v.  Fanning  609 

Ess  V.  Truscott  *72 

Etheridge  i;.  Binney  -158 

Etherington  v.  Parrot  288.  290,  294 

Etting  V.  Schuylkill  Bank  224 

Eubanks  v.  Peak  277 

Eugenie  ?'.  Preval  345 

Evans  v.  Bircli  532 

V.  Drummond  143 

V.  Evans  55,  298 

V.  Kennedy  328 

V.  Keeland  -497 

V.  Llewellyn  415 

V.  Soule  708 

V.  Underwood  211 

t;.  Wells  *49 

Evelyn  v.  Chichester  280 

Everard  v.  Watson  235 

Everett  v.  Uesborough  *  52 

Everitt  i'.  Chapman     *  132,  133,  *  136, 

*  152,  *  166 

Everman  v.  Reitzel  *  382 

Everson  v.  Carpenter  270,  271,  309 

Evertson  v.  Tappea  *103 

Ewart  V.  Nagel  306 


Page 

Ewart  V.  Street  636 

P^wer  I'.  Jones  107 

Ewers  v.  Hutton  303 

Ewing  V.  Ewing  358 

V.  French  613 

I'.  Osbaldiston  *132 

V.  Tees  42 

Exall  y.  Partridge  11,393 

Exeter  Bank  v.  Rogers  504 

V.  Gordon  592 

Exou  V.  Runell  228 


Fabens  v.  Mercantile  Bank  58 

Fairchild  v.  Slocum  *687 

Fairfax  v.  Hunter  324 

Fairlee  v.  Herring  222 

P^iithorne  v.  Blaquire  306 

Falkland  ?;.  Cheney  *168 

Fallowes  v.  Taylor  354 

Falls  V.  Gaither  399,  407 

Fanning  v.  Chadwick  139,  *  140 

Farebrother  u.  Ansley  *37 

Fi\r\o\v.  ex  parte  -180 

Farmer  v.  Francis  542 

V.  Stewart  369 

Farmers  Bank  v.  Bowie  235 

V.  Duvall  224,  -233 

t-.  Raynolds         511,513 

V.  Waples  231 

Farmers  &  Mechanics'  Bank  v. 

Champlain  Trans.  Co.  657,  661, 
665,  689.  707,  710,  713 

V.  Kercheval  506,  509,  -  514 
Farmers  Loan  Co.  v.  Walworth  47 
Farmington   Academy    v.    Allen    378, 

530 

Farnsworth  r.  Garrard  388 

V.  Shepard  443 

V.  Storrs  349 

Farnum  w.  Perry  *441 

Farnworth  v.  Packwood  626 

Farr  v.  Sumner  -  268,  269 

Farrar  v.  Adams  638,  677 

V.  Beswick  133 

r  Granard  306 

V.  Nightingal  414,  438 

Farrow  v.  Turner  391 

Farwell  v.  Bost.  &  Worcester  R.  R. 

Co.  528 

Fash  V.  Ross  *  54 

Faulder  v.  Silk  313 

Faulkner  v.  Wright  637 

Faunileroy's  case  161 

Favor  v.  Philbrick  658 

Fawcett  i'.  Cash  578 

Faxon  v.  Mansfield  522 

Fay  V.  Howe  *  103 

V.  Steamer  New  World  695 

Featherstonaugh  v.  Fenwick  -  1 73 


INDEX   TO    CASES    CITED. 


xlvii 


Page 
*  54,  58 
*157 
4«2 
*153 
288 
12 
-627 
587 
28 
509 
611 
391 
*217 
*49 
*52,  55,  *  204 
429 
414 
524,  526 
V.  Dublin  Steam  Packet  Co.  *  90 


Feeter  v.  Heath 
Feigley  v.  Sponeberger 
Teise  v.  Wray 
Felichy  v.  Hamilton 
Felker  v.  Emerson 
Fell  V.  Goslin 
V.  Knight 
Fellowes  v.  Gordon 
Fellows  V.  Mitchell 
V.  Prentiss 
Felt  V.  School  District 
Felton  V.  Dickinson 
Fenby  v.  Pritchard 
Fenly  v.  Stewart 
Fenn  v.  Harrison 
Fenner  v.  Duplock 
Fenton  v-  Browne 
V.  Clark 


V.  Holloway 
V.  Reed 
r.  White 
Fentum  v.  Pocock 
Fenwick  v.  Chapman 
Ferebe  v.  Gordon 
Ferguson  v. 


V.  Oliver 
V.  Porter 
V.  Thomas 
V.  Tucker 
Fergusson  v.  Norman 
Ferris  v.  Sax  ton 
Person  v.  Monroe 
Fewings  i\  Tisdall 
Field  V.  Field 
V.  Maghee 
V.  Nickcrsou 
V.  Schleffelin 
V.  Simco 
Fielder  v.  Starkin 
Fielding  r.  Kymer 
Ffelds  V.  Malictt 

V.  The  State 
Figes  V.  Cutter 
Figgins  I'.  Ward 
Filer  i\  Peebles 
Filley  r.  Phelps 
Fillieul  V.  Armstrong 
Filmer  v.  Gott 
Filson  V.  Himes 
Finch  V.  Finch 
Findhiy  v.  Smith 
Finney  c.  Bedford  Coram.  Ins.  Co 

i-.  Fairhaven  Ins.  Co 
Finucane  v.  Small 
Fish  V.  Chapman  635,  636,  -641,  705, 

710 

V.  Dodge  -92 

Fislier  v.  Clisbee  645 

V.  Ellis  378 

17.  Evans  229 


311 

559,  564 

261 

216 

343,  344 

462 

424,  608 

474 

*69 

455 

536 

*-382 

-233 

*174 

520,  527 

120 

194 

224 

114 

443 

474 

^80 

229 

326 

*  132 

163 

532 

*174 

521 

356 

380 

252, 255 

*  103,  *104 

48 

45 

605 


Fisher  r.  May 

V.  Mowbray 
V.  Pyne 
V.  Salmon 
V.  Shattuck 
V.  Tayler 
Fishmonger's  Company 

son 
Fisk  V.  Copeland 
V.  Herrick 
V.  Newton 
Fitch  V.  Newberry 
V.  Peckhara 
V.  Reading 
V.  Sutton 
Fitts  V.  Hall 
Fitzgerald  v.  Reed 
Fitzherbert  v.  Mather 

V.  Shaw 
Fitzhugh  V.  Wilcox 
Fitzsimmons  v.  Joslin 
Flagg  V.  Mann 
Flanders  v.  Barstow 
V.  Clarke 
r.  Crolius 
Flarty  i'.  Odium 
Fleckner  v.  U.  S.  Bank 
Fleming  v.  Gooding 

V.  Hayne 
Flemyng  v.  Hector 
Fletcher  v.  Bowsher 
V.  Cole 
V.  Grover 
V.  Gushec 
V.  Howard 
V.  Jackson 
Flewellin  v.  Rave 
Flight  V.  Booth 

V.  McLean 
Flint  V.  Day 

V.  Rogers 
Flintum,  ex  parte, 
Flory  I'.  Denny 
Floyer  v.  Sherard 
Fluck  V.  ToUcmache 
Foard  v.  Womack 
Foden  v.  Sharp 
Fogg  V.  Sawyer 
Foggart  V.  Blackwcller 
Foley  V.  Addenhrooke 
Fonda  v.  Van  Home 
Foorde  i\  Hoskins 
Foot  V.  Tewksbury 
Foote  V.  Burnet 
V.  Sabin 
V.  Storrs 
Forbes  v.  Davison 

V.  Parker 
Ford  V.  Adams 

V.  Bronaugh 
V.  Rchman 


Page 
364 
261 

397 

215,  503 

320, 322 

*157 

V.  Robert- 

375,  392 

163 

*175,  *176 

658, 660 

-682 

531 

211,  225- 

-191 

265, *  268 

311 

*  52,  *  62,  *  64 

*  433 

313 

52,  62 

440 

453 

*112 

500 

194 

*44 

428 

308,  309 

40,  43.  *122 

473 

445 

*  33,  *  35 

213 

442 

34,  *  35 

593 

451 

-  206,  207 

-206 

222 

-18a 

453,  601 
362 
248 
225 
227 
221 
464 

*  14,  16,26 
244 
100 
311 
110 
162 
606,  618,  622 
*152 

454,  455 
190.  195 

*13 
366 


xlviii 


INDEX  TO    CASES   CITED. 


Tord  V.  Stuart 

V.  Phillips 
Forde  i'.,Iierron 
Forgret  v.  Moore 
Forman  v.  Walker 


Page 

*197 

269,  270, 271 

*130 

380 

41 


Forrcstier  v.  Boardman  *  69,  *  80 

Forster  r.  Fuller  *54,  108,  116,  357 

V.  Taylor  11 

Forsyth  v.  M'ilne  250 

V.  Nash  330,  331 

Forsythe  v.  Ellis  457 

Fort'y.  Cortes  225 

Forth  V.  Simpson  617,  681 

Forward  v.  Pittard  619,  634,  635,  637 

V.  Thamer  343 

Foshay  v.  Ferguson  321 

Foss  V.  Crisp  324 

Foster  r.  Bates  45,  HI 

V.  Caldwell  464 

V.  EssexBank87,*118,  573,  605 

v.  Frampton  *485 

V.  Hilliard  115 

V.  Hooper  29 

V.  Pettibone  614 

V.  Peyser  472 

V.  Pugh  443 

V.  Schoffield  •                553 

V.  Stewart  535 

Fouldes  V.  Willoughby  607 

Foulkes  V.  Sellway  549 

Fourth  School  District  in  Eumford 

V.  Wood  *118 

Fowler  v.  Bott  425,  426 

V.  Brooks  506 

V.  Kymer  486 

V.  Poling  *  200 

V.  Stuart  358 
Fowles  V.  Great  Western  Railway 

Co.  688,  689 

Fox  V.  Clifton  121,  *  122,  *166 

w.  Hanbury  *173,  -  173,  *  177 

V.  Mackreth  75,  462 

V.  McGregor  681 

V.  Southaek  324 

v.  Wilcocks  *104 

Foxcroft  Academy  v.  Favor  377 

Fraley  v.  Bispham  465 

Francis  v.  Felmit  263 

Francois  v.  Lobrano  327 

Frank  v.  Edwards  ♦        505 

Frankland  v.  Nicholson  565 

Franklin  v.  Miller  386 

V.  Neatre'  600 

Franklin,  The  -173 

Frankly n  v.  Lamond  *  54,  418 

Franks,  ex  parte  306 

Frazer  v.  Hilliard  *  485 

V.  Marsh  657 

Frazier  v.  Dick  236 

V.  Rowan  262 

Frear  v.  Hardenbergh  360,  371  i 


Fredd  v.  Evez 
Free  r.  Hawkins 
Freeman  v.  Baker 

V.  Baldwin 

V.  Boynton 

V.  Fenton 

V.  Perry 
[v.  Rosher 
Freeman's  Bank  v.  Rollins 
Freestone  v.  Butcher 
French  v.  Chase 
V.  French 
V.  Reed 
Freto  11.  Brown 
Fridge  v.  The  State 
Friedly  v.  Scheetz 
Friend  v.  Woods 
Frisbie  v.  McCarty 
Frith  V.  Sprague 


Page 

293,  294 

231 

473 

453 

363 

308 

*196 

46 

236,  512 

289 

*176 

188,  190 

582 

257,  258 

243,  244 

457 

635,  637 

358 

*33 

Fromout  v.  Coupland  139,  *  140,  *  687, 

700 

Frontier  Bank  v.  Morse  221 

Frontin  v.  Small  53,  *  119 

Frost  V.  Kellogg    ,  *  137 

V.  Willis  295,  302 

Frothingham  v.  Evertou  58,  *  74 

Fry  V.  Hill  221 

V.  Rousseau  208 

Fryatt  v.  The  Sullivan  Co.  609 

Fullam  V.  Valentine  514 

Fuller  V.  Abbott  381 

V.  Abrahams  418 

V.  Bennett  *65 

V.  Brown  524 

V.  Jocelyn  *  62 

V.  McDonald  231 

V.  Milford  512 

V.  Naugatuck  Railroad  Co.  690, 

691 

V.  Smith  219 

V.  Wilson  52,  *  64 

Fulton  V.  Shaw  327 

Fulton  Bank  v.  N.  Y.  &  S.  Canal 

Co.  *  66 

V.  Phoenix  Bank  218 

Furber  v.  Carter  *  134 

Furillio  v.  Crowther  260 

Furlong  v.  Hysom  288 

Furman  v.  Haskin  -217 

Furnes  v.  Smith  266 

Furnival  v.  Crew  422 

V.  Weston  162 

Furze  v.  Sherwood  235 

Fusselman  v.  Worthington  428 


G. 

Gaby  V.  Driver 
Gaffield  v.  Hapgood 
Gahn  V.  Nicmcewicz 
Gaines  v.  McKinley 


418 
432 
236 

*52 


INDEX   TO    CASES   CITED. 


xlix 


Page 
227 
139 
555 
258 
237 
432 
116 
79,  500 
466,  467 
540 
225 
377 
457 
380 
-449 
583 
539 
520,  527 
313 
*148 
466 
500 
194,  195 
41 
*96.  289 
*497 
93 
*85 
573 
161 
443 
-173 
474 
714,  -719 
222 
121 
28 
53 
Garside  v.  Trent  &  Mersey  Navi- 

gatioa  619,  *  687,  689 

Gascoyne  v.  Smith  -217 

Gaske'll  v.  King  381 

Gasque  v.  Small  362 

Gaters  v.  Madeley  285 

Gatliffe  v.  Bourne  670 

Gaunt  V.  Hill  402 

Gaussen  v.  iMortou  58,  *  62 

Gazinsky  ct  nx.  v.  Colbui-n  *  20 

Gay  V.  Lander  207 

Geer  v.  Archer  361 

Geill  V.  Jeremy  234 

Gelley  v.  Clerk  630 

Gennings  v.  Lake  421 

George  v.  Clagett  53 

1-.  Elliott  610 

V.  Harris  377,  378 

George  Home,  The  318 

Geralopulo  v.  Wielcr  238 

Germainc  v.  Burton  *  475 

Gibbon  i-.  Paynton  720 


Gale  V.  Kemper's  Heirs 
V.  Leckie 
V.  Lindo 
V.  Parrott 
V.  Walsh 
V.  Ward 
V.  Wells 
Gall  r.  Comber 
Gallagher  v.  Waring 
Gallaher  v.  Thompson 
Galpin  v.  Hard 
Gait's  Exrs.  v.  Swain 
Galway  v.  Matthew 
Gamble  v.  Grimes 
Gambling  i\  Read 
Game  v.  Harvie 
Gammon  v.  Chandler 
Gandell  v.  Pontigny 
Ganguere's  Estate,  in  re. 
Gardiner  v.  Childs 
V.  Gray 
V.  Hopkins 
Gardner  v.  Adams 
V.  Baillie 
V.  Gardner 
V.  Hopkins 
V.  Heartt 
V.  I\IcCutcheon 
V.  Watson^ 
Gardom,  ex  parte 
Garland  v.  Chambers 

Ex  parte 
Garment  v.  Barrs 
Garnett  v.  Will  an 

V.  Woodcock 
Garrard  v.  Hardey 
Garret  v.  Taylor 
Garrett  v.  Handler 


Gibbs  V.  Freemont 

V.  Merrill 
Gibson  v.  Boyd 

V.  Carruthers 

I'.  Colt 


Page 
230 

274 

592 

476,  479 

*52 


V.Cooke  188,  *191, -191 

V.  Culver  658,  661,  665 

V.  Dickie  556 

r.  East  India  Co.  *118 

V.  Love  443 

r.  Lupton  12,  *  164 

r.  Minet  190 

V.  Moore  •  *  140 

V.  Spurrier  417 

V.  Stevens  178 

V.  Wells  425 

V.  Winter  22 

Giddins  v.  Coleman  *  189 

Gifford  V.  Allen                       '  314 

Ex  parte  *36,  237 

Gilbach's  Appeal  263 

Gilbert  v.  Dennis  226,  235 

V.  Lynes  260 

V.  Whidden  =^152 

Gilby  V.  Singleton  163 

Giles  V.  Ackles  366 

V.  Grover  578 

V.  Perkins  444 

Gill  V.  Cubitt  214 

V.  Kuhn  133 

Gillespie  v.  Edmonston  407 

V.  Hannahan  229 

V.  Hamilton  -173 

Gillett  r.  Fairchild  192 

V.  Ellis  676 

r.  Hill  -441 

V.  Mawman  611 

V.  Eippon  *  33 

Gillighan  v.  Boardman  496 

Gillis  V.  Bailey  *  72 

Gilman  v.  Hall  526 

V.  Kibler  366 

V.  Peck  221 

Gilmore  v.  Black  *  131 

V.  Carman  637 

Gilpin  V.  Enderbey  *  134,  *  141 

I'.  Temple  '     =*  132,  *  134,  *  152 

Gilpins  V.  Consequa  385,  446 

Girard  v.  Taggart  447 

Girod  V.  Lewis  341 

Gisbourn  v.  Hurst  639 

Gist  V.  Lybrand  226 

Givens  v.  I\Ianns  342 

Glasgow  r.  Sands  285 

Gleason  v.  Dyke  395 

Glendinning,  ex  parte  237 

Glenn  r.  Gill  *136,  *174 

Gloucester  Bank  v.  Salem  Bank        220 

Glossop  r.  Colman  28 

Glover  V.  Glover  115 


1 


INDEX   TO    CASES    CITED. 


Page 

Glover  v.  Ott  246 

V.  Proprietors  of  Drury  Lane  286 

.Glynn  v.  Baker  240 

Gober  v.  Gober  328,  330 

Gobu  V.  Gobu  330 

Goddard  v.  Hodges  139 

V.  Merchants'  Bank  220 

V.  Pratt  143 

Godefroy  v.  Dalton  *  98 

Godfrey  v.  Furzo  445 

Godin  V.  Lond.  Ass.  Co.  *  84 

Goff  V.  Clinkard  646 

Golden  r.  Manning      .  658 

Golder  v.  Ogden  -441 

Goldsbury  v.  May  443 

Gompertz  r.  Denton  *475 

Gonzales  v.  Sladen  *  82 

Goodall  V.  Richardson  592 

V.  Polhill  238 

Goodbum  v.  Stevens  126,  *  128 

Goode  V.  Harrison  262 

V.  M'Cartney  *  136 

Goodenow  i\  Dunn  454 

V.  Tyler  *  81 

Goodman  v.  Gi"ifSn  571 

V.  Harvey  214,  571 

V.  Kennell  87 

V.  Pocock  520,  527 

Goodnow  V.  Smith  162 

Goodrich  v.  Gordon  222 

V.  Jones  431 

Gflbdridge  f.  Ross  271 

Goodright  d.  Hall  v.  Richardson       428 

d.  Walter  v.  Davids  427 

Goodsell  V.  Myers  270,  271 

Goodson  V.  Brooke  *  50 

Goodspeed  w.  East  Haddam  Bank     117 

Goodlitle  v.  Southern  421 

I'.  Woodward  163 

Goodwin  v.  Blackburne  583 

V.  Cunningham  *  199 

V.  Holbrook  447 

V.  Richardson  *  127 

V.  Willoughby  367 

Goodyear  v.  Watson  496 

Gookin  iJ.  Graham  458 

Goold  V.  Chapin  672,  673,  674 

Gordon  v.  Buchanan  *  71,  645,  647 

V.  Bulkeley  42 

V.  Hutchinson  639,  -  641 

V.  Potter  253,  260 

V.  Roll  88 

Gore  V.  Buzzard  333 

V.  Gibson  310,  312 

Gorgier  v.  Mieville  240 

Gorton  i'.  Dyson  107 

Goslin  V.  Hodson  537 

Gosling  V.  Birnie  621 

"  V.  Higgins  675 

Gott  V.  Gandy  422 

Gough  V.  Farr  552 


Page 

Gough  r.  Howard  426 

Gould  V.  Armstrong  366 

V.Gould  *  35,  133 

V.  Hill  704.  705,  706,  707 

V.  Shirley  309 

Gouldsworth  v.  Knights  429 

Goupy  V.  Harden  219 

Gouthwaite  v.  Duckworth    *  148,  -  152 

Cover  V.  Christie  193 

Governor,  &c.  of  Copper  Miners  v. 

Fox  120,  374 

Govier  v.  Hancock  296 

Gowan  v.  Jackson  *  164 

V.  Jeffries  - 1 73 

Gower  v.  Capper  373 

V.  Main  waring  101 

V.  Moore  224,  225 

Grace  v.  Hale  245,  246 

V.  Smith  *  134 

Graeff  v.  Hitchman       *  147,  *  157, 159 

Graff  V.  Bloomer  659 

Graham  v.  Brettle  304 

W.Hope  *  61,*  144,  *  145 

V.  Hunt  309 

r.  Gracie  195,370 

V.  Kinder  *  197 

V,  Musson  *  95 

V.  O'Niel  *  497,  500 

V.  Robertson  30,  *  35 

V.  Sangston  235 

V.  Whichelo  429 

Gram  v.  Cadwell  22 

V.  Seton  94 

Granby  v.  Amherst  114 

Grand  Bank  v.  Blanchard  -  233 

Granger  v.  Collins  396,  425 

Grangiac  v.  Arden  358 

Grant  v.  Da  Costa  211 

V.  Ellicott  216 

V.  Healey  *  239 

V.  King  615.  616 

V.  Naylor  493 

V.  Norway  *  652 

V.  Ridsdale  -  508 

U.Thompson  311,313 

V.  Vaughan  -206,  240 

In  re  286 

Grantham  v.  Hawley  437,  438 

Gratz  r.  Bayard  -173 

Gravenor  v.  Woodhouse  428 

Graves  v.  Boston  Mar.  Ins.  Co.  48 

V.  Dash  *  239 

V.  Merry  *  144 

V.  Tucker  -  497 

Gray  v.  Brackenridge  539 

V.  Cox  470 

V.  Donahoe  208 

V.  Handkinson  355 

V.  Holdship  *433 

Gray's  Exrs.  v.  Brown  513 

Graysbrook  v.  Fox  *  112 


INDEX   TO    CASES   CITED. 


li 


Page 

Great  Northern  R.  Co.  v.  Shepherd  720, 

722 

Greaves  V.  Ashlin  -441 

Greely  v.  Bartlett  *  51 

r.  Dow  236,512 

V.  Hunt  231 

Green  v.  Barrett  - 1 73 

V.  Beesley  700 

V.  Farley  -  233 

V.  Goings  227 

V.  Home  53 

V.  Hulett  521 

V.  Lane  344 

V.  Sargeant  75 

V.  Sperry  264,  288 

w.  Tanner  *  147,  159 

V.  Winter  *  103,  115 

Greenaivay  v.  Adams  426 

Greenby  v.  Wilcocks  1 10,  *  200 

Greene  v.  Bateman  399 

r.  Darling  *196 

V.  Dodge  -514 

V.  First  Parish  in  Maiden  *  433 

V.Greene  126,  *  128 

V.  Hatch  *199 

Greenland  v.  Chaplin  702 

Greeno  i'.  Munson  428 

Greenslade  v.  Dower  *  157 

Greenway,  ex  parte  244,  256 

Greenwood  v.  Bishop  of  London       381 

Gregg  V.  Thompson  337 

Gregory  t'.  Frazier  311 

V.  Harman  107 

V.  Pierce  306 

V.  Piper  88.  89 

j;.  Striker  612 

V.  Thomas  454 

Gremare  v.  Le  Clerk  Bois  Valon  *  382 

Greneaux  v-  Wheeler  *217 

Grendell  v.  Godmond  293 

Grenfell  r.  Dean  and  Canons  of 

Windsor  194 

Grev  V.  Cooper  276 

Griffin  f.  Doe  *132 

V.  Macaulay  28 

Griffith  V.  Buflfum  133 

Griffiths  r.  Puleston  430 

Grigsby  i\  Nance  *  140 

Grimaldi  v.  White  -475 

Grinman  v.  Legge  429 
Grinnare  v.  Baton  Rouge  Mills  Co.  *  1 44 

Grimshaw  v.  Bender  *  239 

Grindell  v.  Godmond  304 

Grinnell  v.  Cook         624,  629,  630,  632 

Grissell  v,  Robinson  393 

Griswold  v.  Sheldon  443 

V.  Waddington  *  131,  *  170, 
*  173, -173,  *233 

Groning  v.  Mendham  -475 

Grounx  v.  Abat  338 

Grosvenor  v.  Lloyd  143 


Page 

Grote  V.  The  C.  &  H.  R.  Co.     699,  700 

Groton  v.  Dalheim  224 

Grove  V.  Brien  495 

V.  Dubois  78 

Groves  u.  Perkins  415 

V.  Slaughter  345 

V.Smith  *132 

Grugeon  v.  Smith  235 
Grymes  v.  Boweren                 432,  *  433 

Guardian  of  Sally  v.  Beatty  340 

Guerrv  v.  Ferryman  *  1 96 
Guerreiro  r.  Peile              *  51,  *  80,  420 

Guidon  v.  Robson  25 

Guild  V.  Guild  531 
Gulick  V.  GuHck                       139,  *  140 

GuUett  V.  Lamberton  276 

Gully  V.  Bishop  of  Exeter  357 

Gunnis  v.  Erhart  416 

Gunter  v.  Astor  -  532 

Guth  V-  Guth  298 

Guthrie  v.  Murphy  259 

Gwinnell  v.  Herbert  220 

Gwynn  v.  Lee  213 

G Wynne  v.  Heaton  415 

Ex  parte,  479 

Gylbert  v.  Fletcher  262,  533 

H. 

Hacker  V.  Storer  110 

Hacket  v.  Glover  422 

V.  Tilly  §81 

Hackett  V.  Martin  *  196 

Haddock  v.  Bury  225 

f.  Murray  *233 

Hadley  v.  Clarke  660 

Hagedorn  v.  Oliverson  45,  46 

Hageman  i\  Western  R.  R.  Corp.     690 

Hager  v.  Nolan  537 

Haggerty  v.  Palmer  -  449 

Hakes  v.  Hotchkiss  .367 

Haigh  V.  Brooks  369 

Haight  V.  Badgeley  *  532 

Haine  v.  Tarrant  246 

Haines  i\  Busk  *  85 

Hair  v.  Bell  524 

HaMane  v.  Johnson  424 

Hale  V.  Gerrish  270.  271 

V.  Henderson  *382 

V.  N.  J.  Steam  Nav,  Co.  637 

V.  Smith  458 

Halifax  v.  Chambers  426 

Hall  r.  Ashurst  *  99,  515 

V.  Cannon  537 

I'.  Conn.  River  Steam-boat  Co.  691 

V.  Dewey  428 

V.  Dvson  380 

V.  Fuller  220 

V.  Gardner  *  197 

V.Hall  -180.295 

V.  Huffam  31 

V.  Leigh  29 


Hi 


INDEX   TO    CASES    CITED. 


Page 

Hall  I?.  Mars  ton  *  191,  391 

r.  Mullin  336,338,341,342 

V.  Potter  556 

V.  Kobinson  192,  195 

V.  Smith  11 

V.  Snowhill  453 

V.  Wilson  *  205,  213 

and  Hinds,  in  re  571 

Hallen  v.  Runder  431 

Halliday  v.  McDougall  238 

Halsey  ?.••  Fairbanks  22 

V.  Whitney  162 

V.  Woodruff  25 

Halstead  v.  Shepard  *  156 

Halwerson  i'.  Cole  676 

Halyy.  Lane  -212 

Hamakcr  v.  Eberley  366,  367 

Hamil  v.  Stokes  -173 

Ham  ill  v.  Purvis  162 

Hamilton  v.  Cunningham  *  74 

V.  Lycoming  Mutual  Ins. 

Co.  407 

V.  Pearson  220 

V.  Royse  *  7 1 

V.  Russell  443 

V.  Terry  399 

V.  Watson  -497 

Hamilton  College  v.  Stewart  377 

Hammat  v.  Emerson  389 

Hammon  v.  Roll  162,  367 

Hammond  v.  Anderson  *  441,  483 

I'.  Douglas  *  130, -173 

V.  Hammond  342 

V.  McClures  677 

V.  Messenger  193,  194 

Hamond  v.  Holiday  *  84,  *  85 

Hamper,  ex  parte  133,  *  136 

Hancock  v.  Fairfield  *  48,  *  54 

Hanchet  v.  Whitney  *  433 

Hand  v.  Baynes  658,  661 

Handford  v.  Palmer  608 

Hands  ii.  Slaney  246 

Hankey  i\  Garratt  *177 

Hankinson  r.  Sandilaus  12 

Hanks  v.  Deal  261,  264 

V.  McKee  466 

Hansard  v.  Robinson  241 

Hanson  v.  Meyer  *441,  447,  483 

V.  Roberdeau  418 

V.  Stetson  377 

Harbert's  Case  *  32 

Harden  w.  Gordon  316,317 

Hardie  v.  Grant  295,  296 

Harding  v.  Wilson  422 

V.  Foxcroft  133,  *  137 

Hardman  v.  Wilcox  *  75 

V.  Willcock  678 

Hardwicke  v.  Vernon  76 

Hargons  v.  Stone  468 

Hargreaves  v.  Rothwell  *  64 

Harker  v.  Dement  600 


Harkins  v.  Shoup 

215 

Harland's  Case 

*103,  104 

Harman  v.  Anderson 

*485,  621 

V.  Fishar 

-490 

Harmer  v.  Killing 

270 

Harmon  v.  Johnson 

-158 

Harmony  v.  Bingham 

660 

Harney  v.  Owen 

263, *  268 

Harper  v.  Gilbert 

263 

V.  Little 

*58 

Harrell  v.  Owens 

660 

Harriett  v.  Ridgely 

329 

Harrington  v.  Brown 

75 

V.  Hingham 

*  168 

V.  Lyles 

645 

V.  McShane 

684 

V.  Snyder     - 

-602.  606,  608, 

610 

V.  Stratton 

388 

Harris  v.  Campbell 

12 

V.  Costar 

691 

r.  Huntbach 

494 

V.  Lee 

293 

V.  Morris 

293, 295,  296 

V.  Packwood 

650,  711,  719 

V.  Rand 

675 

t'.  Wall 

269.  270 

V.  Warner 

*36,  37 

V.  Watson 

363 

V.  Wilson 

*152 

Harrison  v.  Cage         544,  547,  548,  550 

V.  Clifton  242 

V.  Close  24,  162 

V.  Crowder  222 

V.  Fane  245,  246 

V.  Gardner  *  131 

V.  Hall  302 

i;.  Heathorn  121,  *  122 

V.  Jackson  94 

V.  Knight  370 

V.  Lemon  311 

V.  Lord  North  426 

V.  McHenry  75 

V.  Murrall  610 

V.  Ruscoe  53 

V.  Sterry  155 

V.  42,  59 

Harrold  v.  Whitaker  30 

Harry  v.  Decker  345 

Hart  V.  Aldridge  *  532 

V.  Deamer  313,  314 

V.  Hammett  465 

I'.  Prater  246 

V.  Stephens  285 

V.  Ten  Evck  *  76,  *  602 

r.  Windsor  422,  423,  426,  471 

V.  Wright  470,  471 

Harter  v.  Moore  571 

Hartfield  v.  Roper  264,  701 

Hartford  Bank  v.  Stedman      228,  -  233 

Hartley  v.  Case  235 


INDEX  TO  CASES  CITED. 


liii 


Page 
Hartley  v.  Cummings  520 
V.  Harman  520,  527 
V.  Rice  548,  556 
V.  Wharton            242,  269,  270 
Hartop  V.  Hoare  578 
Harvey  v.  Brydges  434 
V.  Crickett  -  1 73 
V.  Gibbons  385 
V.  Harvey  432,  *  433 
Harvie  v.  Oswel  427 
Harwood  v.  Bland  417 
V.  Heffer  294 
Hasbrook  v.  Palmer  208 
Hasbrouck  v.  Andervoort  598 
Haskell  v.  Adams  139 
V.  Hilton  193 
V.  Whittemore  213 
Haslet  V.  Street  163 
Hassell  v.  Long  517 
Hassinger  v.  Diver  538 
Hastings  v.  Bangor  House  46 
V.  Lovering  465 
V.  Pepper  638,  645 
Hatch  V.  Purcell  393 
V.  Taylor  40,  *  50 
I!.  Trayes  211 
Hatchell  v.  Odom  361 
Hatcher  v.  McMorine  •            231 
Hatchett  w.  Gibson  618 
Hatsall  I'.  Griffith  11,24,29 
Haughey  y.  Strickler  *152 
Haughton  v.  Bayley  23 
u.  Ewbank  43,  *44 
Haven  v.  Low  443 
Havens  v.  Hussey  155 
Hawcroft  v.  Great  Northern  Rail- 
way Co.  649 
Hawkcs  V.  Salter  234 
Hawkins  v.  Appleby  161 
V.  Berry  463 
V.  Cardy  218 
V.  Cooper  700 
V.  Craig  286 
V.  Gilbert  522 
V.  Hoifman  720,  721 
V.  Phythian  -602 
V.  Vanwinckle  330 
Hawley  v.  Farrar  360 
V.  James  1 1 5 
V.  Smith  631 
Hawtayne  v.  Bourne  41,  *  50 
Hawthorn  w.  Hammond  -627 
Haxtun  v.  Bishop  227 
Hay  V.  Ay  ling  381 
Hayden  v.  Madison  393,  523 
Haydon  v.  Williams  309 
Ex  parte  -  1 80 
Hayes  v-  Heycr  155 
V.  Warren  371 
Haynes  v.  Birks  235 
V.  Covington  513 

e* 


Hays  V.  Borders  -  532 

j;.  Mouille  477,  482,  *  485 

V.  Riddle  601 

V.  Stone  46 

Hayward  v.  Middleton  681 

V.  Scougall  446 

V.  The  Pilgrim  Society   *  118 

Hazard  v.  Hazard  1 42 

V.  New  Eng.  Mar.  Ins.  Co.   399 

V.  Treadwell  59 

Health  v.  Hall  370 

Heapy  v.  Paris  *  62 

Heard  v.  Stamford  285 

Hearle  v.  Greenbank  94 

Hearsey  v.  Pruyn  67 

Hearshy  v-  Hichox  *  84 

Heartt  v.  Chipman  539 

Heatchcock  v.  Pennington  605 

Heath  v.  Chilton  109 

V.Hall  *197 

V.  Sansom  *  172 

Heathcote  v.  Crookshanks  -191 

u.  Hulme  -173 

Heaton  v.  Angier  188 

Hebden  v.  Rutter  373,  544 

Hcdger  v.  Steavenson  235 

Hedges  v.  Riker  114 

V.  Sealy  *  196 

Hedgley  v.  Holt  246,  261,  528 

Heermance  v.  Vernoy  458 

Heflfer  v.  Heffer  565 

Hellaby  v.  Weaver  643,  690 

Hellawell  v.  Eastwood  432 

Helmsley  v.  Loader  97 

Helsby  v.  Hears  *  687 

Helyear  v.  Hawke  *  50,  *  52 

Hemmenway  v.  Stone  11 

Hemphill  v.  Chenie  660,  668 

Henck  v.  Todhunter  97 

Henderson  v.  Barnewall  *  72 

V.  Hudson  *  131 

V.  McDuffee  *35 

V.  Stringer  297 

Hendren  v,  Colgin  285 

Hendricks  v.  Franklin  *  239 

I'.  Judah  -217 

V.  Phillips  334 

Henry  i'.  Goldney  34 

V.  Lee  229 

V.  Nunn's  heirs  336,  342 

Henshaw  xk  Robins  464,  466 

Hensly  v.  Baker  457 

Hepburn  v.  Auld  417 

Heran  i'.  Hall  125 

Herlakenden's  Case  432 

Hern  y.  Nichols  *63 

Herrick  v.  Borst  509,  -  510 

V.  Carman  215 

Herrin  i'.  Butters  530 

Hcrvey  v.  Hervey  559 

Hersom  v.  Henderson  472 


liv 


INDEX  TO  CASES  CITED. 


Page 

Hesketh  v.  Blanchard  133 

Heudebourck  v.  Langton  *  lOG 

Hewitt  V.  Charier  540 

V.  Wilcox  539.  540 

Hey  V.  Moorliouse  365 

Heydon  v.  Heydoa  *  17C 

Heydon's  Case  25 

Heyhoe  ?;.  Burge  *  1'36 

Hiatt  V.  Gilmer  533 

Hibbert  v.  Shee  417 

Hibblewhite  v.  McMorine  *  95,  240,  438 

Hickey  v.  Burt  195 

Hickok  1-.  Buck  607,  609 

Hicks  V.  Haukin  41 

y.  Hinde  *48 

Higgins  V.  Breen  530 

r.  Emmons  578 

V.  Livingstone  *  106 

V.  Morrison  238 

V.  Senior  *48,  48,  *49,  53,  *54 

Hill  V.  Anderson  269 

V.  Buckminster  215 

V.  Calvin  501 

V.  Ely  215 

V.  Featherstonaugh  *  85,  *  98 

V.  Gray  462 

V.  Green  526 

V.  Heap  *  233 

V.  Hobart  450 

V.  Humphreys  659 

V.  Tucker  11,  26 

HlUman  v.  Wilcox  463 

Hills  V.  Bannister  474 

Hillyer  v.  Bennett  -268 

Hilton  V.  Dinsmore  498 

V.  Shepherd  234 

Hinckley  v.  Southgate  -529 

Hind  V.  Holdship  390 

Hinde  v.  Whitehouse     403,  *441,  *449 

Hindley  v.  Westmeath .       295,  297,  300 

Hinds  V.  Brazealle  336 

Hine  v.  Allely  228 

Hinely  v.  Margaritz     243,  270,  271,  274 

Hinesburgh  v.  Sumner  380 

Hinkley  v.  Fowler  390,  391 

Hinman  v.  Hapgood  538 

V.  Judson  453 

V.  Moulton  369 

Hinsdale  v.  Bank  of  Orange  241 

Hinton  v.  Dibbin  718 

Hitchcock  V.  Coker  362 

V.  Humphrey  509 

V.  St.  John  155 

Hoadley  v.  Bliss  231 

Hoare  v.  Graham  7 

Hobbs  V.  Hull  301 

Hod-c  V.  Fillis  225 

Hodii-es  I'.  Dawes  *136 

y.  Eastman  *191,  195 

V.  Hodges  293 

V.  Saunders  364 


Page 

Hodgkinson  v.  Fletcher      301 ,  302,  303 

Hodgman  v.  Smith  *  136 

Hodgson  V.  Anderson  58,  188 

V.  Dexter  *  105 

V.  Loy  479,  482 

,      V.  Shaw  495,  496 

Ex  parte  - 1 80 

Hodnett  v.  Tatum  47 

Hodsman  v.  Grissel  265 

Hoffman  v.  Coombs  513 

V.  Gold  330 

t'.  Pitt  442 

Hogaboom  v.  Herrick  571 

Hogc  V.  Hoge  364 

Hogg  V.  Snaith  41 

Hoggins  V.  Gordon  538 

Hogins  V.  Plympton  465,  472 

Hogue  r.  Davis  *  36 

Hoit  V.  Underbill  271 

Holbrook  r.  Allen  224 

v.  Baker  454 

r.  Bullard  535 

V.  Wright  *  84 

Holcombe  r.  Hewson  471 

Holcroft  V.  Barber  578 

V.  Dickenson  543,  544 

Holden  v.  Dakin  460,  463,  467 

V.  Taylor  422 

Holder  v.  Dickeson  554 

Holding  V.  Pigott  430 

Holford  V.  Hatch  *  200 

Holker  v.  Parker  *  99 

Holl  V.  Griffin  621 

Holland  v.  Holland  567 

V.  Turner  224 

Hollingsworth  v.  Napier  ^485,  489 

Hollingworth  v.  Tooke  *  84 

Hollis  V.  Poole  -  433 

Hollister  v.  Nowlen    673,  691,  709,  710. 

719 

Holly  iJ.  Rathbone  *191 

Holmes  v.  Blogg  *  268,  -  273,  280 

V.  Buckley  *  201 

V.  Kerrison  221 

V.  Higgins  *  123,  139 

U.Williamson  *32,  *35 

V.  Tremper  *  433 

Holridge  v.  Gillespie  115 

Hoist  V.  Pownal  477 

Holt  V.  Bodey  572 

V.  Brien  288 

V.  Ward  Clarencieux      276,  -376, 

545 

Holyland  V.  DeMendez  143 

Homer  v.  Ashford  363 

V.  Thwing  264,  608 

Homes  v.  Crane  '  443,  -  454,  *  595 

r.  Dana  370,  378 

V.  Smith  235 

U.Smyth  *217 

Honyman  v.  Campbell  546 


INDEX   TO    CASES   CITED. 


Iv 


Page 

Hood  V.  Farnestock  *  65 
V.  N.Y.  &  New  Haven  R.  R. 

Co.  120,  690 

Hoodly  V.  IMcLaine  440 

Hooe  V.  Oxley  *  44 

Hooper  v.  Williams  -  206,  207 

Hope  V.  Cust  161 

Hopkins  v.  Appleby  -475 

V.  Lacouture  53 

V.  Logan  374,  396 

V.  MehafFy  *  58 

V.  Richardson  500 

r.  Smith  *164 

V.  Thompson  453 

Hopkinsonr.  Lee  *  14,  16,17.  13,19,24 

Hopkirk  v.  Page  *  233 

Hoplcy  V.  Dufresue  225 

Hopping  V.  Quin  *  98 

Hopson  V.  Bovd  314 

Horbach  v.  Elder  *  33 

Horn  V.  Ivy  1 1 7 

Hornbucklc  v.  Hornburv  302 

Hornby  v.  Lacy              '  390 

Horncastle  v.  Farran  483 

Horner  I'.  Marshall  311 

Horsefall  v.  Mather  425,  608 

Horsfall  v.  Handley  67 

Horsley  v.  Bell  *  105 

Hort  v.  Norton  372,  531,  541 

Horton's  Appeal  *171 

Hosea  v.  McCrory  '         657 

Hoskins  v.  Miller  286 

Hosmer  v.  Beebe  *  81 

Houdlette  v.  Tallraan  -441 

Hough  V.  Richardson  462 

V.  Warr  517 

Houghton  V.  Rlatthews  78 

Houlditch  V.  Cauty  235 

Houliston  V.  Smyth  293,  294 

Housatonic  Bank  v.  Laflin      -233,  235 

House  V.  Fort  459,  463,  464 

V.  Schooner  Lexington  670 

Houser  v.  Reynolds  269,  272,  -  273 

Hovey  v.  Blanchard  47,  *  65 

Hovil  r.  Pack  47 

How  V.  Ivemball  496.  *  497 

V.  Weldon  415 

V.  Whitebanck  *72 

V.  Whitfield  *  72 

Howard  v.  Ames  214 

r.  Baillie  41 

V.  Hocv  470 

V.  Ives'  -  233 

V.  I\Iiner  447 

V.  Priest  *128 

V.  Shepherd  -  239 

V.  Whetstone  293 

I'.  Williams  442 

Howden  v.  Simpson  380 

Howe  V.  Bradley  224 

I'.  Handley  12 


Page 

Howe  V.  Nickels 

501, 502,  503 

V.  O'Mally 

373 

r.  Synge 

381 

Howell  V.  Harvey 

*170 

V.  Jackson 

-627 

V.  Mclvers 

370 

Howes  V.  Barker 

355 

V.  Bigelow 

286 

Howland  v.  Carson 

222 

Hoxie  V.  Can-     12G,  *  127,  ^  129,  *  130 

Hov  V.  Rogers  286 

Hoyle  V.  Stowe  269,  272,  -  273,  276 

Hovt  V.  French  513 

V.  Wildfire  520 

Hubbard  v.  Coolidge  362,  401 

V.  Cummings  -268 

y.  Jackson  218,-273 

r.  Morgan  *186 

Hnbbell  v.  Carpenter  513 

Hubbersty  r.  Ward  *  652 

Hubbert  v.  Horden  *  49 

Hubgh  V.  New  Orleans  R.  R.  528 

Htickman  v.  Fernie  43,  *  52,  *63 

Huddleston's  Case  *61 

Hudgins  v.  Wright  326 

Hudnal  v.  Wilder  443 

Hudson  V.  Granger  83 

z;.  Hudson  *112 

1-.  Revett  *  95 

V.  Robinson  12 

Huff  V.  Nickerson  393 

Huftman  v.  Hulbert  509,  510 

Hughes,  ex  parte  75 

V.  Hughes  256 

V.  Humphreys  534 

V.  Kiddell     "  218 

i.  Large  215 

Huffuenin  v.  Basely  *  75 

Hull  V.  Connollv  259 

V.  Pickersgill  45.  46,  47 

Hulle  r.  Height  man  527 

Humble  v.  Hunter  *48,  *f49 

Hume  r.  Bolland  161 

Humphrey  v.  Douglass  264 

Humphrevs  v.  Coinline  464,  471 

Hundley  v.  Webb  443 

Hunsden  v.  Cheyney  555 

Hunt  V.  Adams"  496 

i\  Bate  371,396 

I'.  Bridgham  511,512 

r.  DeBlaquierc  294,301,302 

V.  Haskell  675,  681 

V.  The  Otis  Company        520,  522 

r.  Peake  276,-376,545 

V.  Rousmanier  58,  *  61 

r.  Royal  Ex.  Ass.  Co.  163 

r.  Tliompson  252 

V.  United  States  51 1,  512 

Ex  parte  200 

Hunter  ;•.  Agnew  243,  261 

v.  Boucher  295,  29G 


Ivi 


INDEX  TO  CASES  CITED. 


Page 

Page 

Hunter  v.  Fulchcr 

345 

Irving  V 

Thomas 

461 

V.  Hunt 

*32 

Isaac  V. 

Clark 

580 

V.  Jameson 

*52 

V. 

West 

327,  347 

V.  Le  Conte 

424 

Isabel  V 

NorvcU 

608 

V.  Miller 

*48 

Isler  V. 

3aker 

=^173 

V.  Osterhoudt 

-434 

Israel  v. 

Clark 

698 

V.  Parker 

47,  *67,  94 

Ivans  V. 

Draper 

*20 

V.  Rice 

444 

Ives  V.  Jones 

*37 

Huntingdon  v.  Knox 

48,  53 

V.  Sterling 

379 

Huntley  v.  Bulwer 

*98 

Iveson  t 

.  Conington 

*99 

Huntly  V.  Waddell 

457 

Izon  i\ 

3orton 

422 

Hurd  V.  Little 

236 

V.  West              613, 

614,  615,  616 

J. 

Hurry  v.  Mangles 

*485 

Hurst  V.  Holding 

*85 

Jackson 

V.  Baker 

*81 

Huscoinbe  v.  Standing. 

322 

V.  Bridges 

330 

Hussey  v.  Freeman 

*233 

V.  Bryan 

*433 

V.  Jewett 

276 

V.  Bullock 

345 

V.  Roundtree 

*532 

V.  Burchin 

272,  274 

V.  Thornton 

*441 

V.  Carpenter 

271,  274 

Huston  V.  Cantril 

357 

V.  Cobbin 

396.  425 

Hutchins  v.  Bank  of  Tenn.             *  1 44 

V.  Cornell 

-180 

V.  Brackett 

623 

V.  Duchaire 

*497,  555 

V.  Gilchrist 

443 

V.  Fitzsimmons 

324 

V.  Hudson 

*144 

V.  Galloway 

399 

V.  Olcutt 

483 

V.  Green 

324 

V.  Turner 

161 

V.  Hudson 

238 

Hutchinson  v.  Bowker 

399,  400 

V.  Lervey 

341 

V.  Moody 

512 

V.  Lunn 

324 

V.  Smith 

159,-180 

V.  Mayo 

270,  276,  391 

1-.  York,  Newcastle  & 

r.  Packer 

227 

Berwick  K'y  Co.      528 

V.  Parks 

300 

Huttman  v.  Boulnois 

518 

V.  Richards 

230 

Hutton  V.  Eyre 

23 

V.  Robinson 

133,  *  137 

V.  Mansell 

545 

V.  Rogers 

648 

V.  JVarren 

426,  430 

V.  Sedgwick 

-173 

Hyat  V.  Hare 

160 

V.  Stewart 

97 

Hyatt  V.  Boyle 

465,  466 

().  Van  Dalfsen 

75 

Hyde  v.  Paige 

53 

V.  Wctherill 

464 

V.  Stone 

286 

V.  Walker 

*382 

V.  Trent  &  Mersey  Naviga- 

V. Walsh 

75 

tion           620 

658    665    fififi 

., 

-641 
*166 

V.  Wolf 

UtyO,    KfKJtJ'    \J\J\J 

53 

Ex  parte 

Hyne  i'.  Dewdney 

208 

Jacky  V. 

Butler 

*176 

Jacobs  I 

.  Featherstone 

306 

I. 

Jacobson  v.  Le  Grange 

537 

Jacomb 

V.  Harwood 

22 

Hey  V.  Frankenstein 

450 

James  v 

Bixby 

530 

lUidge  V.  Goodwin 

700 

V 

Emery              * 

14,  15,  16,  17 

Ingalls  V.  Bills 

693,  698 

V 

Firlcrod 

373 

Ingate  v.  Christie 

642 

V 

Griffin 

481 

Inge  V.  Bond 

458 

V 

Jones 

657 

Ingledew  v.  Douglas 

261 

V 

Le  Roy 

535 

Ingram  v.  Ingram 

*71 

V 

McCredie 

*50 

Ireland  v.  Kip 

224 

V 

Morgan 

362 

Irvine  v.  Crockett 

276 

V 

O'DriscoU 

537 

V.  Kirkpatrick 

462 

V 

Shore 

417 

n.  Stone 

380 

V 

Williams 

374 

i\  Withers 

227 

Jameson  i-.  Swinton 

234.  235 

Irving  V.  Greenwood 

549,  554 

Jamison 

V.  Cosljy 

505 

V.  Motley 

*63 

Jaques i 

.  Marquand 

159 

INDEX  TO  CASES  CITED. 


Ivii 


Jaques  v.  Todd 
Jarman  v.  Patterson 
Jarvis  v.  Brooks 

V.  Peck 

V.  Ilogers 
Jee  V.  'Thurlow 
JefFerys  v.  Gurr 
Jefford  V.  Ringgold 
Jeffrey  v.  Bigelow 
Jefts  I'.  York 
Jencks  v.  Coleman 
Jendwine  v.  Slade 
Jenkins  v.  Blizard 
V.  Brewster 
V.  Hutchinson 
V.  Picket 
Jenkyns  v.  Brown 


Page 

39 

326 

-180 

381 

600, *  602 

299,  300,  301 

393 

276 

*63 

*58 

696 

463 

*144 

-*199 

57 

655 

486 


V.  Usborne  -239.  482,  487,  489 

Jenness  v.  Bean  *  217 

i;.  Emerson  258 

Jenney  v.  Alden  258 

V.  Lesdemier  *  99 

Jennings  v.  Brown  358 

V.  Camp  522 

w.  Estes  *152 

V.  Gratz  465 

V.  Merrill  *  80 

V.  Newman  109 

V.  Pitman  262,  533 

V.  Rundall  264 

Jennison  v.  Stafford  366 

Jenys  v.  Eawler  220 

Jeremy  v.  Goochman  371 

Jerome  v.  Whitney  208 

Jervoise  v.  Silk  256 

Jesse  V.  Roy  317 

Jesscl  V.  Williamsburgh  Ins.  Co.      195 

Jeune  v.  Ward  242 

Jewell's  Lessee  v.  Jewell  560 

Jewett  t'.  Cornforth  *35 

V.  Stevens  *152 

I'.  Warren  370 

Jewitt  V.  Wadleigh  *  99 

Jewry  v.  Busk  538 

Joel  V.  Morrison  700 

Johns  ;;.  Dodsworth  25 

V.  Simons  *67 

Johnson's  Appeal  1 1 5 

Johnson  v.  Blasdale  58,  *71,  *205 

^     V.  Blenkensop  520 

y.  Bloodgood  -198 

V.  Collins  23 

V.  Dorsey  362 

V.  livans  *  179 

V.  Foster  391 

V.  Hill  632 

W.Johnson  *.33,  417 

V.  Kennion  218 

V.  Lines  245,  259 

V.  Marriott  *  98 

V.  Martinus  215 


Page 
Johnson  V.  Medlicott  311 

V.  Midland  Railway  Co.   048, 
6.50 
V.  Municipality  117 

V.  Ogilby  *  54 

V.  O'Hara  *  81 

V.  Pie  265 

V.  Planters  Bank  509 

V.  Sims  318 

V.  Schooner  McDonough    622 
V.  Smith  46,  *48 

V.  Stone  721,  722 

V.  Thayer  *189 

V.  Wilson  30 

Johnston  v.  Barrett  336 

V.  Cope  460,  467 

V.  Fessler  399 

V.  Huddleston  430 

V.  Nicholls  509 

V.  Searcy  512 

?'.  South  Western  Rail- 
road Bank  *  63 
V.  Thom]ison  511 
V.  Wabash  College  377 
Ex  parte  224 
Johnstone  v.  Huddlcstonc               *  433 

JoUand, v.  11 

Jones  V.  Ashburnham         366,  368,  369 
V.  Boston  Mill  Corp.  364 

V.  Boyce  693 

V.  Bradner  476 

V.  Brewer  116 

V.  Bright  469 

V.  Darch  "  276 

V.  Downman  *  54 

V.  Dyke  418 

V.  Edney  416 

17.  Foxall  *103 

V.  Glass  605 

V.  Herbert     '  162 

V.  Jones  483 

V.  Littledale  *  54,  418 

V.  Nanncy  418 

d.  Griffiths  v.  Marsh  434 

r.  Noy  *  61,*  173 

?;.  Perkins  311 

V.  Richardson  454 

V.  Robinson         *  20,  27,  389,  390 
V.  Roe  438 

w.  Ryde  219 

V.  Smith  571,  *  595 

V.  Tanner  107 

V.  Thurloe  632 

V.  Todd  *268 

f.  Tyler  631 

V.  Voorhees  643,  704,  721 

V.  Waite  300,  379,  381 

V.  Williams  402 

r.  Witter  *  197,  *  198,  *  199 

V.  Woodbury  542 

V.  Yates  - 1 73 


Iviii 


INDEX  TO  CASES  CITED. 


Page 

Page 

Jordan  v.  Fall  River  R.  R 

.  Co.          720 

Kennedy  v.  Lee 

*  130,  407 

V.  James 

*84,  479 

V.  Ross 

443 

V.  Norton 

40,  401 

Kenrig  v.  Eggleston 

676, 720 

Josephine  v.  Poultney 

34.5 

Kensington,  ex  parte 

-180 

Josephs  V.  Pebber 

*85 

Kent  V.  Kent 

108,-529 

i\  Pebrer 

121 

V.  Shuckard 

-  627 

Joslyn  V.  Smith 

511,513 

Somervell 

108 

Jourdain  i:  Wilson 

*201 

Kenworthy  v.  Schofield 

403 

Judah  V.  Harris 

208 

Ker  V.  Dungannon 

*75 

Judd  V.  Lawrence 

324 

V.  Mountain 

697 

Judge  V.  Wilkins 

362 

V.  Snead 

*103 

Judkins  v.  Walker 

263,  523 

Kerns  v.  Piper 

41 

Judson  V.  Sturges 

*80 

Kerr  v.  Willan 

719 

V.  Uass 

415 

Kerrison  v.  Cole 

381 

Juliana.  The 

316 

Kershaw  v.  Matthews 

-173 

Juniata  Bank  v.  Hale 

224 

Kerslake  v.  White 

421 

Ketchell  v.  Burns 

493 

K. 

Ketchum  v.  Durfee 

*  153, *  157 

V.  Durkee 

*174 

Kain  v.  Old 

472 

V.  Evertson 

522 

Kane  v.  Gott 

115 

Ketley's  Case 

279 

V.  Paul 

109 

Ketsey's  Case 

279 

In  Re 

256 

Kettletas  v.  Fleet 

339,  343 

Karr  v.  Karr 

*104 

Key  V.  Bradshaw 

543 

Karr's  Adm'r  v.  Karr 

*103 

V.  Cotesworth 

486 

Karthaus  v.  Ferrer 

*168 

Keyes  v.  Keyes 

564 

Kase  I'.  John 

*475 

Keys  V.  Williams 

193 

Kay  V.  Allen 

501 

Kidd  V.  Rawlinson 

442 

V.  Duchess  de  Pienne                306 

Kiddell  v.  Burnard 

473 

Kaye  v.  Brett 

43 

Kieran  r.  Sandars 

621 

V.  Button 

360,  395, 397 

Kilby  V.  Wilson 

161 

Kayser  u.  Disher 

108 

Killcrease  v.  Killerease 

285 

Keane  v.  Boycott 

244, *  532 

Kimball  v.  Keyes 

303 

Kearsier  v.  Holmes 

521 

Kilgour  r.  Finlyson 

*44 

Kearsley  v.  Cole 

237 

Kimbro  c.  Lytle 

*217 

Keasley  v.  Codd 

*123 

Kimpton  v.  Eve 

432 

Keates  r.  Cadogan 

462,  470 

Kinder  v.  Shaw 

*80 

Keeler  v.  Field 

-449 

King  V.  Baldwin 

510 

Keener  r.  Harrod 

55 

V.  Bardeau 

415 

Keightley  i-.  Watson 

*14,  17,  27 

V.  Bickley 

235 

Keith  V.  Jones 

208 

t'.  Flintan 

296 

Kelby  i'.  Steel 

31,*  35 

V.  Hoare 

11,  12 

Kell  V.  Nainby 

28 

V.  Hobbs 

367 

Kelley  r.  Hurlburt 

142, 143 

V.  Humphreys 

614 

Kellogg  V.  Denslow 

474,  -475 

I'.  Jones 

109,  110 

Kelly  y  Renfro 

550 

V.  Kersey 

553 

V.  Solari 

440 

V.  Lenox 

655 

Kemleys  v.  Richards 

*168 

V.  Richards      577, 

678,-682,  684 

Kemp  V.  Andrews 

31 

V.  Sears 

379 

V.  Burt 

*98 

V.  Shepherd 

643,  648 

V.  Coughtry 

645,  685 

V.  Sow 

*532 

V.  Finden 

*32,  *33 

V.  Thorn 

108,  109 

V.  Pryor 

*71,*81 

V.  Upton 

366, 368 

Kendall  v.  Fitts 

443 

Kingdon  v.  Nottle 

109,  110, *  200 

Kendrick  v.  Campbell 

222 

Kingman  v.  Spurr 

*131 

Kennard  v.  Burton 

702 

Kingston  v.  Kincaid 

*  69,  *  73 

Kennaway  v.  Treleavan 

375 

V.  Phelps 

374,  -376 

Kennedy  v.   Baltimore 

Ins.    Co.    117, 

V.  Wilson 

*69 

*118 

Kinley  i".  Fitzpatrick 

463 

V.  Bohannon 

*144 

Kinloch  v.  Craig 

482 

V.  McFadon 

139 

1  Kinlyside  v.  Thornton 

432 

INDEX  TO    CASES    CITED. 


lix 


Kinnersley  v.  Orpe 
Kinsley  v.  Ames 

V.  Robinson 
Kintzing  v.  INIcElrath 
Kintzinger,  Estate  of 
Kipling  V.  Turner 
Kirby  v.  Bannister 

V.  Ingersoll  1 

x\  Schoonmaker 
V.  Sisson 
Kirk  V.  Blurton 
V.  Hodgson 
V.  Nice 
Kirkman  v.  N^wstead 
V.  Shawcross 
Kirkpatriek  v.  McCulloch 
V.  Muirhead 
!'.  Stainer 
Kirton  r.  Eliott 
Kirwan  v.  Kirwan 
Kitchen  v.  Lee 
Kitchin  v-  Buckley 
i\  Compton 
Kittrcdge  v.  Woods 
Kitty  V.  Fitzhugh 
Klein  v.  Cumer 
Kline  v.  Beebe 

V.  L'Amoureux 
Knapp  V.  Alvord 
V.  Curtis 
V.  Hanford 
V.  McBride 
Knight  V.  Benctt 
V.  Fox 
V.  Hughes 
Knights  V.  Quarles 
Knobb  V.  Lindsay 
Knott  V.  Cottee 

IK  Morgan 
Kohlman  v.  Ludwig 
Kohn  V.  Packard 
Konig  V.  Bayard 
Konigmacher  v.  Kimmel 
Kooystra  i\  Lucas 
Kornegay  v.  White 
Kramer  v.  Sandford 
Kurtz  V.  Adams 
Kyle  V.  Green 
Kymer  v.  Suwercropp 


Lacey  v.  Lear 

Et  parte 
Lackey  v.  Stouder 
Lacy  i\  Kynaston 

V.  ()sl)aldiston 
Laclouch  V.  Towle 
Lacoste  v  Flotard 
Ladd  V.  Chotard 
r.  Kenney 


Page 

426 

-433 

225 

462 

285 

507 

*106 

55,  *156,  160 

*1T4 

241 

97 

*157,  *169 

470 

28 

-627 

231 

*217 

*82 

246 

167,362 

-273 

21 

21 

431 

331,  342 

*497 

244,-273 

259 

*6I 

618 

108 

*  172, -173 

430 

89 

*33 

110 

414 

*103 

*131 

213 

669,  670 

238 

115 

422 

474 

226 

*497 

226 

53,  *  54,  479 


434 
75 
458 
23 
522 
678 
386 
658 
225 


Page 
Ladd  V.  Lynn  304 

Lady  Arundell  i'.  Phipps  442 

Lady  Belknap's  Case  3O6 

Lady  Ormond  v.  Hutchinson  *  76 

La  Farge  v.  Herter  512 

V.  Jayne  309 

V.  Kneeland  67 

Lahy  i'.  Holland  30 

Laiiilaw  v.  Organ  461 

Laidler  V.  Elliott  *98 

Laing  v.  Colder  692,  710,  718 

V.  Fidgeon  469 

Lamb  v.  Crafts  465,  472 

Lambert's  Case  160 

Lamburn  v.  Cruden  526 

L'Amoreux  v.  Gould  363,  *  376 

Lamourieux  v.  Hcwit  493 

Lampet's  Case  192 

Lancaster  v.  Harrison  24,  26 

Lancaster  Bank  v.  Wordward  215 

Lanchester  v.  Tricker  *32 

Land  v.  Jeffries  442 

Landry  v.  Stansbury  225 

Landsdalc  v.  Cox  *  33 

Lane  v.  Cotton   573,   622,   -  627,    648, 

650 
u.  Drink^Yater  *13,  15,  *20,  24, 
26 
V.  Goodwin  565 

V.  Ironmonger  289 

V.  McKeen  288 

V.  O wings  24 

V.  Steward  *233 

Fraser,andBoylston,Caseof*'134 


La  Neuville  v.  Nourse 
Lanfear  v.  Sumner 
Lang  V.  Bevard 
V.  Smith 
);.  Whidden 
Langan  v.  Hewctt 
Langdale,  e.r  parte 
Langdon  v.  Buel 
Langford  v.  Frey 
Langfort  v.  Tiler 
V.  Tyler 
Langley  v.  Berry 

V.  Palmer 
Langton  r.  Horton 
Lanier  v.  McCabe 
J^anphier  v.  Phipos 
Lansing  v.  Gaine 

V.  McKillup 
Lantry  v.  Parks 
Lantz  V.  Frey 
Lanyon  v.  Toogood 
Lary  ?;.  Young 
Lassell  v.  Reed 
Latliam  v.  Morrow- 
Latimer  V.  Batson 
Latt  r.  Booth 
Lattimorc  v.  Garrard 


467 

-490 

511 

240 

311 

162 

*132 

453 

244 

-441,  444 

*441,  479 

*  189 
228 
438 

*  168 
*74 

*144 
163 

522,  523 
532 
444 
231 

431,432 
418 
442 

244,  261 
396 


k 


INDEX   TO    CASES   CITED. 


Lauglian  v.  Bewett 
Laugher  v.  Pointer 
Lauglilin  v.  Ferguson 
Laveroiii  v.  ]3rury 
Laverty  v.  Burr 
Law  V.  Wilkin 
Lawler  v.  Keaquick 
Lawrence  i-.  Clark 
V.  Kemp 
V.  McArter 


Page 
306 
-92 
443 
648 
162 
247,  250,  371,  392 
*  73,  *  80 
139 
432 
243 


V.  McCalmont  495,  509 

V.  Stonington  Bank       *212 
V.  Taylor  *127,  160 

V.  Wright  111 

Lawson  r.  Farmers  Bank        -  233,  234 
Lovejoy  244,  -268,  -273, 280 
501 
-206,  214 
*433 
*433 


Lawton 


Townes 
Weston 
Lawton 
r.  Salmon 
Layer  v.  Nelson 
Layfield's  Case 
Lazell  V.  Pinnick 
Leach  v.  Hewitt 
r.  Mullett 
V.  Thomas 
Leader  i\  Barry 
Leaf  V.  Coles 
Lean  v.  Shutz 
Leavitt  v.  Palmer 
V.  Peck 
V.  Savage 
V.  Simes 
Leek  v.  Maestaer 
Ledoux  i\  Gosa 
Lee  V.  Atkinson 
V.  Coleshill 
V.  Dick 
I'.  Lee 

V.  Muggeridgc 
V.  Vernon 
Leech  v.  Baldwin 
Leeds  r.  Cook 
V.  Vail 
Wright 


*32 

*157 

311 

225 

416,  451 

432 

242,  559 

*173 
306 
381 

*157 
511,  512,  513 
224 
618 
*72 
607 
381 
501 

*532 
359,  360,  361 
422 
638 
549 
288 
484 


Leeds  and  Thirsk  Railway  v.  Fearn- 

ley  279,280,281,282 

Lees  V.  Nuttall  *  75 

V.  Whitcomb  374 

Leeson  v.  Holt  709. 

Leflore  i'.  Justice  470 

Legg  V.  Legg  285,  286 

d.  Scot  V.  Benion  434 

Leggat  V.  Reed  289 

Lcgii  V.  Hewitt  426 

V.  Legh  22,  162,  195 

Legrand  v.  Hampden  Sydney  Col- 
lege ■      *118 
Le  Grand  v.  Darnall  342 
Legro  V.  Staples                               *  189 


Page 
Le  Gucn  v.  Gouvcrncur  510 
Lehman  v.  Jones  226 
Leigh  V.  Smith  *  652 
V.Taylor  *  106 
Leighton,  ex  parte  116 
V.  Stevens  -  449 
Leland  v.  Creyon  500 
Le  Loir  v.  Bristow  528 
Lemar  v.  Miles  *  433 
Lemott  V.  Skerrett  426 
Lenox  v.  Mutual  Ins.  Co.  676 
Lennox  v.  Roberts  -  233 
Leonard  v.  Bates  355 
V.  Hendrickson  646 
V.  Leonard  313 
V.  Vredenburgh  496,  *  497 
Lepard  y.  Vernon  *61 
Le  Roj"  V.  Johnson  *  1 57 
Le  Sage  V.  Coussmaker  *  532 
Lessee  of  Lazarus  v.  Bryson  *76 
Lester  v.  Jewett  374 
i;.  McDowell  -441 
L'Estrange  v.  L'Estrange  188 
Letcher  v.  Bank  of  the  Common- 
wealth 506 
V.  Norton  454 
Lethbridge  v.  Phillips  579 
Leverick  w.  Meigs  *69,  78 
Levi  V.  Waterliouse  711 
Levy  V.  Bank  of  U.  S.  220 
V.  Cohen  407 
V.  McCartee  324 
Lewin  v.  Guest  417 
Lewis,  ex  parte  622 
V.  Burr  235 
V.  Fullerton  •            345 
V.  Gamage  *99 
V.  Gompentz  235 
V.Jones                  -237,426,431 
V.  Kramer  223 
V.  Langdon  *  130 
V.  Lee  306,  568 
V.  Littiefield  264 
V.  Lyman  431 
V.  Nicholson  57 
V.  Pead  314 
V.  Peake  474 
V.  The  Western  Railroad 

Co.  661,  673,  675 

Libhart  v.  Wood  521 

Lickbarrow  v.  Mason  215,  -239,  240, 
487,  489 

Liddard  v.  Kain  459 
Liddlow  V.  Wilmot             301,  302,  303 

Liford's  Case  432 

Lightburn  v.  Cooper  *475 

Lightly  V.  Clouston  535 

Ligonia  v.  Buxton  563 
Lillv  V.  Elwin               518,  521,  522,  527 

V.  Havs  355.  390 


INDEX   TO    CASES    CITED. 


Ixi 


Page 

Lilly  V.  Hodges  12 

Limerick  Academy  v,  Davis  377 

Lindo  V.  Unswortli  234 

Lindiis  V.  Bradwell  293 

Line  v.  Stephenson  422 

Lineker  v.  Ayeshford  -  239 

Lines  v.  Smith  211,  458 

Linn  v.  Crossing  12 

Liotard  v.  Graves  *  80 

Lipscombe  v.  Holmes  539 

Lister  v.  Baxter  *  67 

Litchfield  v.  Cudworth  75 

Litt  V.  Cowley  477 

Littell  y.  Marshall  216 

Little  V.  Dawson  *  532 

Little  Miami  R.  R.  Co.  v.  Stevens  *^529 

Littlefield  v.  Shee  359,  361 

Littlejohn  v.  Jones  645 

Livaudais  v.  Fon  337 

Livingston  v.  Roosevelt        *  156,  *  164 

Lloyd  V.  Archbold  30 

V.  Crispe  385 

y.  Howard  *  212, -212 

V.  Johnson  246 

V.  Lloyd  556 

V.  West  Branch  Bank  *  50 

Lobdell  r.  Baker  *  50 

V.  Hopkins  447 

Locke  r.  United  States  511,513 

Lockhart  v.  Barnard  23 

Lockwood  V.  Ewer  *  602 

V.  Laskell  702 

V.  Thomas  303 

Loder  v.  Chesleyn  370 

Loeschman  v.  Machin  606 

V.  Williams  484 

Logan  V.  Birkett  299 

V.  Bond  160 

V.  Hall  425 

V.  Mathews  606 

Londonderry  v.  Chester  560,  563 

London  Gas  Light  Co.  v.  Nichols      121 

*  48,  48,  *  58 

459 

-490 

*36 

364,  367 

238,  367 

88 

*  130, -136 

259,  260,  360 

163 

266 

*69 

46 

*175,  *176 

428 

592 

*76 

414 

*76 


Long  V.  Colburn 

V.  Hicks 

V.  Preston 
Longley  v.  Griggs 
Longridge  v-  Dorvillc 
Lonsdale  v.  Brown 

V.  Littledalc 
Loomis  V.  Marshall 
V.  Newhall 
V.  Piersou 
Loop  V.  Loop 
Loraine  v.  Cartwriglit 
Lord  Andlcy's  Case 
Lord  V.  Baldwin 

V.  Bigelow 
Lord  Camoys  v.  Scurr 
Lord  Chedworth  v.  Edward 
Lord  Clermont  v.  Sasburg 
Lord  Ilardwicko  v.  Vernou 


Page 
Lord  Lexington  v.  Clarke  380 

Lord  Londsdale  v.  Littiedale  88 

Lord  Southampton  i-.  Brown  391 

Lord  St.  John  v.  Lady  St.  Jolin       298 
Lorent  v.  Kentring  675 

Lorymer  v.  Smith  438 

Losce  V.  Dunkin  -217 

Louisiana  Bank  v.  Kenner's  Suc- 
cession -173 
Louisiana  State  Bank  r.  Senecal     *  66 
Louisville  &  Charleston  R.  R.  Co. 

V.  Letson  117 

Lovell  V.  Briggs  115 

Lovelock  V.  King  ,')4l,  617 

Lovett  V.  Hobbs  643,  649 

Lovie's  Case  no 

Low  V.  Barchard  362 

V.  Blodgett  496 

Lowe  V.  Griffiths  246 

V.  Moss  637,  660,  675 

V.  Peers  453,  556 

V.  Weatherley  366 

Lowell  V.  Boston  &  Lowell  R.  R. 

Co.  *  90,  93 

Lowery  v.  Scott  229 

Lowfield  v.  Bancroft  25 

Lowndes  v.  Lane  414 

Lowry  v.  Adams  494,  503 

V.  Gwilford 
V.  Houston 

V.  Steamboat  Portland 
Lowrey  v.  Murrell 
Lowther  v.  Lowther  *  75, 


/ 


Loyd  V.  Freshfield 

V.  Lee 
Lubbock  V.  Inglis 
Lucas  V.  Bank  of  Daricn 

V.  Beacli 

V.  Beale 

V.  De  La  Cour 

V.  Dorrien 

V.  Godwin 

V.  Groning 

V.  Novosilieski 

V.  Worswick 
Lucena  v.  Craufurd 
Lucey  v.  Ingram 
Luckett  ?;.  Tounscnd 
Lucy  V.  Lcvington 

Ex  parte 
Ludlow,  Mayor  of, 
V.  McCrea 
Luff  V.  Pope 
Lukeiis's  Appeal 
Lumley  v.  Gye 
Lundie  v.  Robertson 
Lunn  r.  Thornton 
Lunsford  r.  Coquillon 
Lunt  V.  Adams 
V.  Stevens 
Lupton  V.  White 


*98 

285 

702 

221 

-75 

-158 

358,  361,  367 

621 

*  145 

*123 

23 

*49 

240 

388,  530 

79,  *80 

-532 

440 

*44 

*90 

*602 

109,  110 

364 

Charlton       *118 

12 

223 

*103 

*532 

225 

439.  454 

■  345 

222 

24,  162 

*  76,  85 


Ixii 


INDEX  TO   CASES   CITED. 


Page 

Lush  V.  Eussell  526 

Lyell  V.  Sanbourn  43 

Lylly's  Case  262,  533 

Lynch  v.  Commonwealth  97,  *98 

V.  Nui-din  700,  701 

Lyndc  f .  Budd  -273 

Lyndon  V.  Gorham  *  175,  *  176,  *  177 

Lynn  v.  Bruce  27 

Lyony.  Mells  708,  718 

V.  Reed  429 

V.  Smith  623 

V.  Sundius  222 

Lyons  v.  Barnes  450 

V.  Martin  87 

Lysatt  V.  Bryant  236 

Lysney  v.  Selby  463 

Lytle  V.  Pope  *  36 

Lytton  V.  Lytton  278 


M. 


McAllester  v.  Sprague  24 

McArthur  v.  Sears      635,  636,  645,  647 

McAuley  i'.  Billinger  379 

McBride  v.  Hagan  162 

V.  McClelland  443 

McCall's  Estate  *  104 

Case  *  103 

V.  Clayton  *48 

v.  Flowers  605 

McCartec  v.  Teller  277 

McCarthy  v.  Goold  194 

McCarty  v.  Emlen  *  177 

V.  Blevins  438 

McCUntick  v.  Cummins  322 

McClallen  v.  Adams  302 

McClane  v.  Fitch  -  233 

McClure  v.  Richardson  641 

McClures  v.  Hammond  641 

McCoU  V.  Oliver  *  140 

McComb  V.  Wright  *95 

M'Combie  r.  Davies  79,  *  80 

McConnell  v.  Gibson  75 

i\  Hector  -173 

McCormick  v.  Connoly  542 

V.  Trotter  203 

McCoy  V.  Artcher  458 

V.  Huffman  263 

M'Cready  v.  Freedly  12 

McCreight  v.  Aiken  311,  313 

McCrillis  v.  Bartlett  312,  314 

V.  How  261 

McCulIoch  V.  Dashiell  -180 

V.  Eagle  Ins.  Co.     406,  407 

V.  McKec  46 

McCullough  r.  Sonimervillc  160 

McCurry  v.  Hooper  313 

McCutchen  v.  Marshall  347 

V.  McGahay  288,  293,  294, 

295,  297 

McDaniel  v.  Cornwell  306 


McDaniel  v.  Flower  Brook  Manuf. 

Co.  495 

McDcrmot  r.  Laurence  *  130 

McDoal  V.  Yeomans  493 

McDonald  v.  Edgerton    -627,  628,  630 

V.  Hewett  -441 

V.  Magruder  *  36 

V.  Morton  313 

V.  Pope  429 

McDowall  V.  Wood  306 

McDowle's  Case  533 

McElroy  v.  Nashua  &  Lowell  R. 

R.  Corp.  700 

McEvers  v.  Mason  222 

McEwan  v.  Smith  476,  489 

McFarland  v.  Newman  464 

McGahay  v.  Williams  297 

McGan  v.  Marshall  244 

McGee  v.  Metcalf  513 

McGill  I'.  Rowand  649,  721,  722 

McGinn  v.  Shaeffer  276 

McGoon  V.  Aukeny     ^  580 

McGrath  v.  Robertson'  -  306 

McGregor  v.  Penn  463 

McGruder  v.  Bank  of  Washington    229 

McGuire  v.  Newkirk  502 

V.  Ramsey  *  129 

McHenry  v.  Duffield  *  58 

V.  Railway  Co.  658 

Mclntyre  v.  Bowne  658 

V.  Carver  617 

V.  Parks  440 

Mclver  v.  Humble  *  1 64 

V.  Richardson  402,  501 

McJilton  V.  Love  *  196 

McKay  v.  Bryson  -  532 

KcKenna  v.  George  *  33,  *  35 

McKenzie  v.  Fort  460 

V.  Hancock  *  475 

V.  McLeod  426 

V.  Stevens  251 

McKinley  v.  Watkins  366,  374 

McKinney  v.  Alvis  190 

V.  Neil  691,  696,  699 

V.  Pinckard  415 

McKnight  v.  Hogg  262 

McLane  i?.  Sharpe  702 

McLaren  v.  Watson  493 

McLauchlin  v.  Lomas  605,  609 

McLellan  v.  Cumberland  Bank  24 

McLemore  v.  Powell  236 

McManus  v.  Crickett  87,  88 

McMillan  v.  Vanderlip  522 

McMinn  v.  Richmonds  244,  261 

McNairy  v.  Bell  227 

McNeill  V.  McDonald  214 

V.  Reid  *  132,  374,  385 

McPlierson  ?;.  Rathbonc  *152 

V.  Rees  360 

McQueen  v.  Farquhar  417 

Maanss  v.  Henderson  41 


INDEX   TO    CASES    CITED. 


Ixiii 


Page 

Maberly  v.  Turton  256 

Macbeth  v.  Haldimand  *  105 

Mac  Ghee  v.  Morgan  3G2 

Mackay  v.  Bloodgood  94 

V.  Holland  214 

Mackersy  v.  Ramsays  42 

Mackinley  v.  McGregor  288 

Mackintosh  v.  Barber  *  76 

V.  Mitcheson  *67 

Macomber  v.  Parker  *  441,  -441 
Maclean  v.  Dunn         43,  47,  447,  *475 

Macon  v.  Shcppard  378 

Mactier  r.  Frith  407 
Mad  Kiver  &c.  R.  R.  Co.  v.  Fulton  720, 

722 

Magee  v.  Atkinson  *  54 

Magill  V.  Hinsdale  *  48 

V.  Mcrrie  ^144 

Magnay  v.  Edwards  23 

Magniac  v.  Thompson  359 

Maggs  i;.  Ames  494 

Magruder  v.  Union  Bank  224 

Mahew  v.  Bovcc  702 

Mahonv  v.  Ashlin  238 

Mahoney  v.  Ashton  331,  346 

Maigley  v.  Haner  356 

Mainwaring  v.  Brandon  *  74 

V.  Leslie  295 

I'.  Newman  *  141 

r.  Sands  295 

Mair  v.  Glennie  133 

Makarell  v.  Bachelor  246 

Maleverer  v.  Redshaw  381 

Mallam  v.  Arden  428 

Mallory  v.  Willis  614 

Malloiigh  V.  Barber  *  74 

Maltby"  t'.  Harwood  *532 

Man  V.  ShifFner  *  80 

Manby  v.  Long  117 
V.  Scott            245,  290,  294,  297 
Manchester  Iron  Co.  v.  Sweeting     571 
Mandeville  v.  Welch     188,  *  191,  - 191 

Manella  v.  Barry  *  69 

Maney  v.  Killough  443 

Mangles  v.  Dixon  *  196 

Manning  v.  Manning  *  103 

V.  Wells  624,  628 

Mansell  v.  Burredge  12 

Manson  17.  Felton  312,315 

Mantz  r.  Goring  425 

Maples  V.  Wightman  244 

Mardcn  v.  Babcock  443 

Mardis  v.  Tyler  361 

Margaret  Podgcr's  Case  46 

Margetson  v.  Wright  459 
Maria  v.  Surbaugh      326,  327,  346,  347 

Marie  v.  Avart  339 
Marie  Louise  v.  Marot       329,  331,  345 

Markham  u.  Brown  -627 

V.  Jones  *  151 

Markle  v.  Hatfield  220 


Page 

Markman  v.  Close  334 

Marlow  v.  Pitfield  246.  293 
Marquand  v.  N.  Y.  Man.  Co.  *  131,  *  1 71, 

-173 

Marr  v.  Johnson  21 6 

Marriott  r.  Shaw  *176 

V.  Stanley  702 

Marryat  v.  Brodcrick  58 

Marsh  v.  Home  711,  719 

V.  Hutchinson  306 

V.  Keating  #44 

V.  Rulesson  522 

V.  Ward  11 

Marshall  V.  Broadhurst  109,111 

r.  Marshall  *171 

V.  Mitchell  226,  231 

V.  Rutton  300,  306 

V.  Smith  *  13 

Marston  ?J.  Allen                   -  -212 

V.  Hobbs  *  200 

Marten  v.  Mayo  270,  276 

Martin  V.  Baker  no 

V.  Black's  Ex'rs  366 

f.  Boj'd  -206 

V.  Chauntry  208 

V.  Cotter  415 

V.  Martin  300 

V.  Mathiot  -449 

V.  Mayor  &c.  of  Brooklyn      623 

V.  Stribling  -497 

V.  Temperley  89,  *  90 

V.  Winslow  .224 

V.  Wright  509,  *  532 

Martin's  Heirs  v.  Martin  564 

Martindale  v.  Smith  479 

Martini  i-.  Coles  *80 

Marvin  v.  Trumbull  *130 

Marwick,  In  re  -180 

Mary  v.  Brown  345 

Mar'zetti  v.  WilHams  *  69,  *  74 

Mascal's  Case  *200 

Mason  v.  Chambers  421 

r.  Conn  ell         *  131,  143,  *  171 

V.  Dennison  274 

r.  Farnell  107 

V.  Joseph  *  72,  *  73 

V.  Lickbarrow  447 

V.  Martin  75 

t'.  Thompson '624,  628,  629,  631 

V.  Wright        '  246 

Massey  v.  Davies  77,  *  85 

Massiter  v.  Cooper  •    697 

Master  r.  Miller  195 

Mateer  v.  Brown  624,  €25 

Mather  v.  Ney  565 

Matilda  v.  Crenshaw  332 

Mathews  v.  Aikin  495 

Matthews  v.  Bliss  462 

V.  Milton  499 

V.  Parker  474 

Mathewson  v.  Clarke  *  131 


Ixiv 


INDEX   TO    CASES    CITED. 


Page 

Mathcwson's  Case  12 

Matthewson  v.  Johnson  243,  269 

Maud  V.  AVaterlious^  368 

Maudslay  v.  Lc  Blanc  *  122,  *  123 

Maury  v.  Talmadge  691,  693 

Maving  v.  Todd  622,  653,  708,  709 

Maxwell  f.  Jameson  190 

V.  Mcllvoy  623 

Maxim  v.  Morse  308 

May  V.  Calder  114 

V.  CofEn  363 

V.  May  *  20 

V.  Princeton  701 

V.  Skey  293 

V.  Woodward  12,  29,  31 

Maydew  v.  Forrester  *  33 

Mayfield  v.  Wadsley  380 

Mayhew  v.  Crickett  *  36,  162 

V.  Eames  *  66 

?'.  Mayhew  565 

Mayor  v-  Humphries  699 

V.  Johnson  241 

Mayor  of  Berwick-upon-Tweed  v. 

Oswald  505 

Mayor  &c.  of  New  York  v.  Bailey       93 
Mayor  of  Thetford's  Case  1 1 7 

Mead  v.  Small  226 

V.  Young  *212 

Mechanics'  Bank  v.  Bank  of  Co- 
lumbia *  48 
V.  Griswold  226 
,                       V.  Merchants 

Bank     *  74,  586 
Mechanic's  &  Trader's   Bank  v. 

Gordon  588,  654 

Mechelen  v.  Wallace  379 

Medbury  v.  Watrous        263,  *  268,  523 
Medina  v.  Stoughton  456 

Meech  v.  Smith  *  58 

Meek  v.  Atkinson  320 

Meert  v.  Moessard  188 

Meggs  V.  Binns  *98 

Melancon  v.  Robichaux  567 

Meldrum  i'.  Snow  450 

McUerish  r.  Rippin  235 

McUish  V.  Motteaux  473 

r.  Simeon  *239 

Melody  v.  Chandler  455 

Menard  v.  Scudder  501,  503 

Menctone  y.  Athawes  611 

Mercer  v.  Oilman  345 

V.  Whall  526 

Merchants  &c.  v.  Orant  270 

Merchants  Bank  v.  New  Jersey 

Steam  Nav.  Co.  706 

Merle  v.  Wells  508 

Merewether  v.  Shaw  555 

Merriam  v.  Bavlev  308 

V.  The  Hartford  &c.  Rail- 
road Co.  650,  -  634 
V.  Wilkins          -  271 


Page 

Merrick's  Estate  *  104 

IMcrrimack  Co.  Bank  v.  Brown         506 

Merritt  v.  Claghorn  624,  625 

V.  Johnson  612 

V.  Seaman  111 

Mershon  v.  Hobensack  634,  636,' 639 

Merry  weather  v.  Nixan  *37 

Mervvin  v.  Butler  643,  659 

Mertens  v.  Adcock  447 

V.  Winnington  238 

Messenger  v.  Clarke  286 

V.  Southey  235 

Mcsser  r.  Woodman  -441 

Messier  v.  Amery  *  81 

Mctcalf  V.  Bruin  507 

V.  Hess  626 

Metcalfe  v.  Richardson  235 

V.  Shaw  289 

Meux  V.  Humphrey  163 

Meyer  v.  Haworth  361 

Meyrick  v.  Anderson  *112 

Michaell  v.  Stockworth  23 

Michigan    Central  R.  R.  Co.  v. 

Ward  665,  670 

Michoud  V.  Oirod  75 

Micklewait  I'.  Winter  *  602 

Mickles  1-.  Colvin  *217 

Midgley  v.  Lovelace  23,  *  201 

Middlcbrook  v.  Corwin  431,  432 

Middlebury  College  v.  Chandler       245 

Middlemore  v.  Ooodale  *  199 

Middleton  v.  Welles  *  75 

Middleton  Bank  v.  Jerome  -  206 

Milburn  v.  Codd  139 

Milbrun  v.  Gayther  *  151 

Miles  V.  Cattle  633 

V.  Durnford  109 

V.  Gorton  483,  *=  490 

Milford  V.  Worcester  558,  563 

Miller  v.  Adsit  579 

V.  Baker  *  433 

V.  Bartlet  *  136 

V.  Chetwood  414 

t'.  Drake         357,373,391,-449 

V.  Gaston  493 

V.  Hackley  238 

D.  Manice  -158 

V.  Race        -  206,  214,  -  239,  240 

V.  Sims  262 

V.  Smith  -490 

V.  Steam  Nav.  Co.  672 

V.  Stem  513 

V.  Stewart  503,  505 

V.  Travers  421 

V.  Whittier  193 

Milligan  v.  Wedge  89 

Milliken  v.  Brown  23,  24 

Millon  V.  Salisbury  -602 

Mills  V.  Ball  484 

V.  Barber  155,  *150,  160 

V.  Bank  of  U.  S.       *  73,  230,  235 


INDEX   TO    CASES    CITED, 


Ixv 


Page 

Mills  V.  Dennis  114 

V.  Graliam  266 

V.  Hvde  *35 

V.  Hunt  418 

y..Lee  364, 365 

V.  Oddy  416 

V.  Ladbiooke  16,  30 

V.  W}-man  259,  360 

Millward  v.  Littlewood  548,  550 

Milne  v.  Hiiber  *  382 

Milner  r.  Harewood  277 

V.  Milnes  286 

r.  Tucker  -475 

Milnes  v.  Cowley  362 

Milton  V.  Mosher  ^  95,  453 

V.  Eowland  474 

Mima  Queen  v.  Hepburn  331 

Miins  V.  JMitchell  605 

Minard  v.  Mead  48,  293 

Minden  v.  Cox  257 

Miner  v.  Hoyt  215 

Minett  ?\  Forrester  *61 

Minnit  v.  Whinery  142,  *  157 

Mintum  v.  Seymour  415 

Miranda  v.  City  Bank  of  New 

Orleans  *73 

Misner  v.  Granger  470 

Missroon  v.  Waldo  467 

Mitchel  V.  Ede  486 

Mitchell  v.  Beal  443 

V.  Cotten  513 

V.  Dall  il42 

V.  Dcgrand  -233 

V.  Fuller  -212 

V.  Gile  437 

r.  Kingman  311 

V.  Mims  *  63,  G05 

I'.  Penn.  E.  E.  Co.  *529 

V.  Eoulstone  *  152 

r.  Smith  ^382 

V.  St.  Andrew's  Bav  Land 

Co.                  '  47 

t-.  Warner  110,  *  200 

Mitford  V.  Walcot  238 

Mixer  v.  Coburn  389,  460 

Mizen  V.  Pick  302 

Moar  V.  Wright  195 

Mobley  v.  Lombat  *  176 

Modde'well  v.  Keever  *  131,  155 

Mock  V.  Kelley  540" 

Mockbec  v.  Gardner  458 

Mockman  r.  Shcpherdson  526 

Moffat  V.  Parsons  42 

V.  Smith  422 

Moggridge  r.  Jones  38 

Molony  v.  Kernan  75 

Molson  I'.  Ilawley  216 

Molton  V.  C:imroux  312 

Moncricf  i-.  Ely  260 

Mondel  v.  Steele  388 


Monk  V.  Clayton 
Monkman  v.  Shcpherdson 
Monroe  v.  Conner 
Montacute  v.  Maxwell 
Montague  v.  Benedict 

1-.  Espinnasse 
V.  Perkins 
Montany  v.  Eock 
Monte  AUegre,  The 
Montefiori  i\  IMontefiori 
Montesc]uieu  v.  Sandys 
Montgomery  r.  Dillingham 
Montgomery  County  Bank  v.  Al- 
bany'City  Bank  222 
Monys  r.  Leake 
Moody  V.  Payne 

V.  Threlkcld 
Moon  V.    Guardians   of  Witney 

Union 
Mooney  v.  Lloyd 
Moor  V.  Veazie 
Moore  v.  Abernathy 

I'.  Barthop 

V.  Coffield 

V.  Evans 

V.  Fitzwater 

V.  Gano 

V.  Hart 

V.  Hill 

V.  Inhabitants  of  Abbott 

V.  Moore 

V.  Sample 

V.  Viele 
Morville  v.  The  Great  Western 

Eailway  Co. 
Moosa  V.  Allain 
IMoravia  v.  Levy 
JMore  V.  Mayhow 
Mores  v.  Conham 

V.  Mead 
Moreton  r.  Hardem 
Morgan  v.  Congdon 
V.  Fencher 
V.  Stell 

V.  Thames  Bank 
i\  Thomas 
~  V.  Woodworth 
V.  Yarborough 
Morisone  r.  Arbuthnot 
Moritz  V.  Melhorn 
Morley  r.  Attenborough 

r.  Boothby 

V.  Polhill 
Morrill  v.  Aden 

V.  Wallace 
Morris  v.  Cleasby 

V.  Edgington 

V.  Husson 

V.  Lee 

V.  Martin 


41.  42 

526 

*157 

5.54 

289,  292 

288 

*205 

453 

*52 

555 

*75 

512 


224 

381 

178 

-212 

*  72 
539 
193 

-273 
444 
226 
707 
364 

*14I 
555 
190 
702 
75 
178 
309 


715,  718 
346 
*140 
*64 
593 
460 
161 
617 
457 
59 
285 
111 
236 
543,  544,  549 
555 
544 

456,  457 
354,  *497 

109,  110 

264 

464 

78,  79,  390 

422 

228,  234 
208 
295 


r 


Ixvi 


INDEX   TO   CASES   CITED. 


Morris  v.  Miller 
V.  Morris 
7\  Kcdfield 
V.  Summcrl 


Page 
559 

-180 
537 

*75 


Morrison  ?;.  Blodgett  *175,  178,  *179 

*1S0 
V.  Deaderick  194 


Morrow  r.  Waltz 
Morse  v.  Bellows 

V.  Crawford 

V.  Earl 

V.  lloyal 

V.  Slue 

V.  Welton 

V.  Wilson 
Mortimor  v.  McCallan 
V.  Mortimer 
Mortimore  v.   Wright 


Mortlock  I'.  Bullcr 
Morton  v.  Fenn 

V.  Lamb 

V.  Westcott 
Moseley  v.  Boush 
Moses  V.  Boston  &  Maine  K 


V.  Fogartie 

V.  Macferlan 

V.  Norris 

V.  McFcrlan 

V.  Mead 

V.  Stevens 
Mosdcll  V.  Middleton 
Moss  V.  Hall 

V.  Livingston 
V.  Kossie  Lead  Minin 
V.  Sweet 
Mosteller  v.  Bosh 
Moston  V.  Burn 
Motley  V.  Motley 
Motram  v.  lieyer 
Mott  V.  Comstock 
Motteux  V.  Lond.  Ass.  Co. 
Mottram  v.  Heyer 
Mouldsdale  v.  Birchall 
Moultoti  V.  Trask 
Mountford  v.  Gibson 

i\  Scott 
Mountney  v.  Collier 
Mountstephcn  v.  Brooke 
Mouse's  Case 
Mouton  V.  Noble 
Mowatt  V.  Howland 
Mowry  v.  Todd 
Mozley  v.  Tinkler 
Mudd'i;.  Harper 
Muhler  v.  Bohlens 
Muilman  v.  D'Equino 
Mulherrin  i-.  Hannum 
Mullen  V.  Ensley 


402 

162,  195 

311 

286 

*75 

639, 646,  720 

258 

*  134 

439 

278 

249,    250,    251, 

260,  371 

362,  415 

551 

*449 

234 

193,  194 

R.  653, 

710 

289 

386,414 

641 

414 

467,  471 

263,  523 

381 

236,  513 

*48 

Co. 


?44 

450 

214 

366 

*76 

477,  484 

302 

193 

484,  *485 

370 

523 

#112 

*64 

428 

162 

676 

355 

*144 

19.5,  *  198 

*376,  402,  501 

218 

79 

221 

227 

608 


Page 

Mullen  V.  Gilkinson  524 

Mumford  v.  Brown  541 

w.  McPherson  4  72 

Munger  v.  Tonawanda  E.  Co.  701 

Munn  V.  Baker  720 

i\  Commission  Co.  *50 

Munro  v.  De  Chemant         59,  304,  305 

Munroe  i\  Cooper  -206 

V.  Leach  702 

Munsey  i\  Goodwin  535 

Murphy  v.  O'Shea  75 

Murray  v.  Barlee  289 

V.  Blatchford  22 

V.  Bogert*35,*131,*137, 139, 

*14G 

V.  Carret  386 

V.  East  India  Co.  41 

V.  House  97 

V.  Judah  216 

r.  Lylbura  *  196 

w.  Mumford  *  172, -173 

r.  Murray  -180 

Murrill  V.  Neill  ^f  174, -180 

M  urry  v.  Smith  450 

Muschamp  v.  L.  &  P.  Junct.  Eail- 

way  Co.  *  687,  688,  689 

Musier  ?'.  Trumpbour  *  140 

Mussey  v.  Rayner  501 

Mutford  V.  Walcot  238 

Myers  v.  Edge  494,  507 

V.  Sanders  269 

Myler  v.  Fitzpatrick  *  76,  678 


N. 


Nailor  v.  Bowie  226,  229 

Napier  v.  McLeod  22 

V.  Schneider  *  239 

Nash  V.  Drew  *  51 

r.  Harrington  *  233 

V.  Eussell  361 

National  Bank  V.  Norton  *66,  *144 

Fire  Ins.  Co.  v.  Loomis      418 

Naylor  v.  Dennie  477,  *490 

D.Moody  511,512 

Navulshaw  v.  Brownrigg  *51,  *80 

Neal  V.  Farmer  326 

V.  Saunderson  635 

Neale  r.  Turton  *  123,  *  141 

V.  Wyllie  425 

Neate  v.  Ball  450 

Ned  V.  Beal  347 

Neel  V.  Decns  386 

Neelson  v.  Sanborne  496 

Negro  Cato  v.  Howard  339 

George  v.  Corse  343 

Harriet  v.  Eidgely  346 

Jack  V.  Hopewell  347 

Nellis  V.  Clark  414 


INDEX   TO    CASES  CITED. 


Ixvii 


Page 

Nelson  v.  Bo3'nton 

499 

V.  Cowing 

*52 

V.  Lloyd 

*152 

V.  Macintosh 

588 

V.  Powell 

53 

IK  Serle 

368,  369 

V.  Suddarth 

319,  321 

Nerot  V.  Burnard 

*170 

V.  Wallace              357,  -382,  385 

Nesmith  v.  Dj^eing 

*84 

Neville  v.  Wilkinson 

555 

Nevins  v.  Townshcnd  217 

New  V.  Swain  *441 

New  Bedford  Turnpike  v.  Adams     378 
Newbcggin  v.  Pillans  306 

Newbury  v.  Armstrong  375 

Newcomb  v.  Brackett  450 

V.  Clark  48 

Newel  V.  Keith  530 

Newell  V.  Hamcr  573 

V.  Hill  393 

N.  E.  Marine  Ins.  Co.  v.  De  Wolf  47, 

#49 
Ncwhall  V.  Vargas  477,  478,  479,  482, 
-485,488 
New  Hamps.  Savings  Bank  v.  Col- 
cord  366,  512 
New  Haven  County  Bank  v.  IMitch- 

cU  501,  506 

New  Jersey  Bal.  Co.  v.  Cook  *  58 

Newman  r.  Bagley  *175 

V.  Bean  *136,  *179 

i\  Newman  381 

V.  Washington  539 

New  Hope  &c.  Co.  v.  The  Phosnix 

Bank  *  66 

N.  J.  Steam  Nav.  Co.  v.  Merchants 

Bank  705,  710,  718 

New  Orleans  R.  R.  Co.  v.  Mills         225 

New  Phoinix,  The  528 

Newport  v.  Cook  256 

Newry&EnniskilenR.R.j;.  Coombe279, 

280,  281,282 

Newson  v.  Thornton        -  239,  477,  487 

V.  Thorton  601 

Newsome  v.  Coles  *166 

Newton  v.  Harlan d  434 

N.  Y.  Fire  Ins.  Co.  v.  Bennett  162 

New  York  &  E.  R.  v.  Skinner  701 

Nichol  V.  Bate  *  233 

V.  Martyn  -532 

Nicholas  v.  Chamberlain  432 

Nichole  v.  Allen  251,  371 

Nichols  V.  Coolahan  520,  527 

V.  Haywood  23 

V.  Norris  237 

V.  Poulson  540 

V.  Raynbred  373,  374 

Nicholson  v.  Chapman  580 

V.  May  369 


Page 
Nicholson  v.  Rcvill  162,  237 

Z5.  Willan  .       704,711 

Nickells  v.  Atherstone  429 

Nickerson  v.  Easton  263 

Nicholson  v.  Knowles  678 

Nickson  v.  Brohan  41,  ^  50 

Neidelct  v.  Wales  426 

Niell  V.  Morley  312,  313 

Nightingale  v.  Withington  257,   -268, 

276 
Nisbet  V.  Patton  '     161 

Nix  V.  Olive  484 

Nixon  V.  English  215 

Noble  V.  Smith  358 

Noke  V.  Awder  *  201 

Noke's  Case  422 

Noland  v.  Clark  592 

'^o\te,  ex  parte  162 

Norris  v.  Hall  *191 

V.  Le  Neve  *  75 

N.  A.  Coal  Co.  V.  Dyett  289 

North  V.  Wakefield  26 

North  River  Bank  v.  Aymar  *  66 

North  Western  Railway  v.  McMi- 

chael  279,280,281.282 

Northampton  Bank  v.  Pepoon  *49 

Northern  v.  Williams  670 

Northey  v.  Field  477,  484 

Norton  v.  Coons  *36,  37 

V.  Eastman  501 

V.  Fazan  295,  297 

V.  Pickering  *233 

V.  Rose  *196 

V.  Seymour  97 

V.  Simmes  381 

V.  Waite  *217 

V.  Woodruff  614 

Norway  Plains  Co.  v.  Boston  & 

IVIaine  R.  R.  648,  664,  665 

Norwood  V.  Stevenson  305 

Nott  V.  Douming  163 

Nowlan  v.  Ablett  518,  520 

Nunn  V.  Wilsmore  301 

Nurse  v.  Craig  301 

Nutbrown  v.  Thornton  414 


0. 

Oadcs  V.  Woodward 
Oaks  V.  Weller 
Oakley  v.  Aspin-wall 
Oates  V.  Caffin 

V.  Hudson 
Obrian  v.  Ram 
O'Brien  v.  Cnrrie 
Ocean  Ins.  Co.  v.  Rider 
Odiorne  v.  Maxcy 
Odin  V.  Greenleaf 
Offiy  V.  Ward 
Offley  and  Johnson's  Case 


321 


41 


*62 
503 
133 
335 

,  322 
285 
262 
539 

*80 

34 

391 


INDEX   TO    CASES    CITED. 


Page 

Page 

Offut  V.  Stout 

235 

Owen  V.  Gooch 

55 

Ogden  V.  Astor 

*136 

V.  Homan 

237 

V.  Cowley 

225,  229 

V.  Owen 

567 

V.  Raymond 

*58 

V.  White 

252 

Og^ilvie  V.  Foljumbe 

416 

Ex  parte 

*  131 

Ofile  V.  Atkinson 

621 

Owens  V.  Collins 

126 

O'Kcson  i\  Barclay 

364 

V.  Dickenson 

289 

Oldaker  v.  Lavender 

-173 

0 wing's  Case 

311 

Oldknow,  ex  parte. 

#180 

0 wings  V.  Hull 

46 

Oliver  v.  Bank  of  Tcnn. 

225 

V.  Low 

195 

V.  Court 

75 

Owston  V.  Ogle 

30 

V.  Houdlct 

276 

Oxford  Bank  v.  Haynes 

-514 

V.  Munday 

224 

V.  Lewis 

513 

V.  Oliver 

298 

Ozeas  V.  Johnston 

-140 

V.  AVoodroffo 

243,  261 

Ollivant  v.  Bayley 

469,  *475 

Olmstead  v.  Beale 

519,  522,  526 

P. 

Olmsted  v.  Hotailing 

*63 

Oneida  Manuf.  Co.  v.  Lawrence        467 

Packard  v.  Getman 

-654 

Society  v 

.  Law- 

V.  Richardson 

6 

rence 

463 

Pad  wick  v.  Turner 

230 

Ongley  v.  Chambers 

421 

Page  ?;.  Carpenter      *175, 

)*=179,  *180 

Onondaga  County  Bank 

V.  Bates      237 

Ex  parte 

-180 

V 

.DePuy-158 

Paget  r.  Perchard 

443 

Onslow  !'.  Eamcs 

474 

Pain  V.  Packard 

510, 511 

V.  Orchard 

25 

Paine  ?'.  Cave 

418 

Ontario  Bank  I'.  Lightbody                221 

Palliser  v.  Ord 

*72 

V.  Mumford          193,  194 

Palmer  v.  Andrews 

549 

V.  Worthin 

gton        *217 

V.  Edwards  • 

*200 

Oppenheim  v.  llusseU 

-485 

V.  Merrill 

*198 

Oppenheimer  v.  Edney 

722 

V.  Neave 

555 

Orange  Co.  Bank  v.  Brown       713,  720 

V.  Pratt 

208 

Ord  V.  Fenwick 

111 

V.  Richards 

*212 

Ordinary  v.  Wherry 

269 

V.  Sparshott 

27 

Orear  v.  McDonnald 

223,  224,  225 

I'.  Stephens 

55,  *  58 

Ormond  v.  Hutchinson 

76 

Palo  Alto,  The 

407 

Orms  V.  Ashley 

356 

Paradine  v.  Jane 

525,  661 

228 

Paramour  v.  Yardly 

107 

Orr  V.  Hodgson 

324 

Pardee  v.  Drew 

720 

Orvis  V.  Kimball 

270 

Parham  v.  Randolph 

417 

Osborn  v.  Governors  of  G 

ly's  Hos- 

Paris  V.  Stroud 

245 

pital 

*  532 

Parish  v.  Crawford 

658 

V.  U.  S.  Bank 

97 

V.  Stone 

379 

Osborne  v.  Brennan 

*151 

Park  V.  Hamond 

*74 

V.  Bremar 

417 

Parke  v.  Eliason 

444 

V.  Crosbern 
V.  Harper 

29 
*20,  23,  *35 

328 
701 

V.  Adams 

V.  Rogers 

397 

V.  Baker 

276 

Osgood  V.  Franklin 

362,  414,  415 

f.  Barker           *164 

*  166,  496 

V.  Lewis 

463,  465 

V.  Branckcr 

58 

Osmond  v.  Fitzroy 

314 

r.  Carter 

360 

Ostrander  v.  Brown    653, 

660,  668,  669 

r.  Ellis 

*35 

Otis  V.  Hussey 

225,  226 

V.  Flagg 

637,  645 

V.  Sill 

454 

V.  Flint 

623 

Otts  V.  Alderson 

461,  463 

r.  Gordon 

222 

Cutwater  v.  Dodge 

-441 

V.  Greele 

222 

Ovcrholt  r.  Ellswcll 

305 

r.  Gregg 

23 

Overton  v.  Freeman 

89 

V.  Kelly 

*196 

Owen  V.  Bowen 

190 

V.  Lawrence 

24 

r.  Burnett 

718 

V.  Pistor 

*177 

INDEX   TO    CASES    CITED. 


Ixix 


Page 

Parker  v.  Pringlc  474 

V.  Ramsbottom  *  144 

V.  Smith  *61 

V.  The  Bristol  &c.  Eaihvay 

Co,  G8,  649 
V.  Tlie  Great  Western  Rail- 
way Co.  649,  650 
Parkhouse  v.  Forstcr  624 
Parkhiirst  v.  Dlckerson  223 
V.  Foster  624 
V.  Kinsman  *  1 7 1 
Parkin  v.  Carruthers  *  61,  *  145 
Parkinson  v.  Lee  460,  468 
Parkist  v.  Alexander  *  69,  *  75 
Parks  V.  Hall  476 
V.  Inijrani  216 
Parncll  v.  Price  513 
Parris  v.  Roberts  -  449 
Parry  v.  House  428 
Parson  v.  Lcxton  *  475 
Parsons  v.  Armor  *44 
V.  Briddock  495 
V.  Camp  431 
V.  Hardy        637,  645,  660,  675 
V.  Hill  276 
V.  Monteath  637,  705,  706,  710, 
718 
Parton  v.  Hervcy  5G2,  5G3,  565 
r.  Woodward  *  196 
Partlow  V.  Cooke  *  532 
Patehin  ;;.  Swift  355 
Pate  V.  Henry  650 
Paterson  r.  Gandasequi  53,  *  82 
V.  Hardacre  -206 
V.  Tash  *51,  79 
Pateshall  r.  Tranter  474 
Patience  r\  Townley  226 
Paton  V.  Duncan  465 
Patterson  v.  Athcrton  196 
v.  Gage  526 
r.  Patterson  537 
Patton  V.  Smith  443 
V.  The  Randolph  *  67 
V.  State  Bank  241 
Paul  V.  Frazier  543,  553 
V.  Hardwick  474 
Payne  v.  Cave  403 
V.  Commercial  Bank  513 
r.  Cutler  *217 
V.  Hainc  425 
r.  Matthews  -180 
V.  Roddcn  458 
V.  Shadholt  *441 
Payntcr  v.  Williams  394 
Payson  v.  Wliitcomb  227 
Peachey  v.  Rowland  89 
Peacock  r.  Peacock  133,  *170,  -173, 

.530 

V.  Monk  356 

V.  Rhodes  -  206 

Pearcc  v.  Blackwell  462 


Page 

Pearce  v.  Chamberlain  -  173 

I'.  Hitchcock  26 

Pearpoint  r.  Graham  155,   *  156,   160, 

*170 
Pearse  v.  Green  *  76 
Pearson  v.  Duckham  34 
V.  Graham  *  61 
V.  Henry  109 
V.  Humes  381 
f.  Keedy  *174 
V.  Parker  22,  *  35 
V.  Pearson  358 
i;.  Skelton           *35,  *37,  139 
Pease  v.  Hirst  21,  *  508 
V.  Mead  110 
V.  Turner  220 
Peaslee  t'.  Breed  31,*  36 
Peate  v.  Dicken  370 
Peay  v.  Pickett  208 
Peck  V.  Barney  503 
W.Fisher  *128 
V.  Neil  ,  699 
Peckham  v.  North  Parish  in  Haver- 
hill 11,*  20 
Peebles  v.  Stephens  355 
Peele,  e.r  ;;fr/-<e  *  166 
V.  Northcotc  79 
Peeters  v.  Opie  -449 
Pcet  V.  McGraw  629 
Peignc  V.  Sutcliffe  264 
Peltier  v.  Collins  401 
Pemberton  v.  King  *433 
V-  Oakes  507 
Pender  v.  Fobes  472 
Penley  v.  Watts  425 
Penn  V.  Bonnet  309 
V.  Lord  Baltimore  363 
Penn.,  Del.^  &  Md.  Steam  Nav. 

Co.  V.  Dandridgc  46 

Pennock  v.  Tilford  463 

Pennock's  Appeal  418 

Ponoyer  v.  Watson  507 

Penrose  v.  CuiTcn  264 

Pensonmeau  v.  Bleakley  75 

Penton  v.  Robart  *  433 

People  V.  Conklin  324 

I'.  Janscn  510,  511 

V.  Kendall  264 

V.  McHatton  513 

V.  Moores  263 

V.  Shall  355 

V.  White  512 

Percival  ?'.  Blade  -475 

r.  Frampton  *  217 

Percy  r.  IVIillaudon  588 

Pcrley  v.  Bald;  389 

Perkins  r.  Challis  215 

V.  Dana  424 

V.  Douglass  450 

V.  Eastern  &B.&M.R.  R. 

Co.  701 


Ixx 


IXDEX   TO    CASES    CITED. 


Page 

Page 

Perkins  v.  Gilman 

574 

Pickering  v.  Pickering 

IDS, 288 

V.  Hart 

540 

Pickford  v.  Grand  Junction  Rail- 

V. Herscy 

5.53 

way  Co.         648,  049, 

650,  *  652 

V.  Pinker 

*197 

Picquet  v.  Curtis 

227 

V.  Thompson 

75 

Pidcock  V.  Bishop 

*497 

Pci'rine  V.  Checseman 

355 

Pidgin  V.  Cram 

252,  254 

V.  Fireman's  Ins.  Co. 

512 

Pierce  v.  Burnhara 

568 

Perring  v.  Hone 

*123 

V.  Jackson                  * 

174,  *  175 

Perry  r.  Green 

226 

V.  ]Minturn 

428 

V.  Mays 

215 

V.  Pendar 

*233 

V.  Randolph 

142 

I'.  Schenck 

614.  615 

Pern  v.  Turner 

404 

V.  Trigg 

120, *  128 

Peter  v.  Beverly 

115 

Piers  V.  Piers 

560 

V.  Rich 

*35 

Plerson  v.  Hooker              22, 

*156,  162 

V.  Steel 

530 

V.  Hutchinson 

241 

Peters  v.  Ballistier 

*51 

Pigott  r.  Bagley 

-173 

V.  Fleming 

245 

V. 

649 

v.  Lord                    2G3,  * 

532,  535 

V.  Thompson 

390 

V.  Wcstborough 

-529 

Pike  V.  Irwin 

496 

Peto  V.  Blades 

457 

Pilkington  v.  Scott 

520,  -529 

V.  Hague 

*63 

Pillans  V.  Van  Mierop    8.  222,  355,  357 

Petrie  v.  Bury 

*14,  25 

Pim  V.  Curell 

422 

Pettibone  v.  Roberts 

386 

r.  Downing 

115 

Pettingill  v.  McGregor 

*99 

Pickney  v.  Hagadom 

*48.  *49 

Pettis  V.  Kellogg 

454 

Pinkham  v.  I\Iacy 

235 

Petty  V.  Anderson 

292 

Pinkerton  v.  Marshall 

*205 

Pettyt  V.  Jancson 

-173 

Pinnel's  Case 

-191 

Peyton  v.  Bladwell 

555 

Pinto  V.  Santos 

*76 

Phelps  V.  Townsend 

375 

Piper  V.  Manny 

624.  631 

V.  Worcester            245, 

246,  259 

Pitcairn  v.  Ogbourne 

555 

Phetteplace  v.  Steere 

372 

Pitcher  v.  Bailey 

*37 

Philadelphia  &  Red.  R.  R.  Co 

V.  Barrows 

*144 

V.  Derby 

88,  094 

V.  Wilson 

-529 

Philips  V.  Bank  of  Lewiston 

*]99 

Pitchford  v.  Davis 

*122 

Phillips  V.  Bateman 

362,  493 

Pitkin  V.  Flanagan 

*36 

V.  Bonsall 

12 

I'.  Pitkin 

-173 

V.  Bridge 

*175 

Pitt  V.  Albrithow 

621 

V.  Briggs 

*37 

V.  Petway 

75 

V.  Condon 

590 

V.  Purssord 

*  33,  394 

V.  Cook                       ^* 

177,  178 

V.  Smith 

311 

V.  Craramond. 

*129 

V.  Yaldan 

*98 

V.  Earle 

*652 

Pittam  V.  Foster 

316 

V.  Green 

-273 

Pitts  V.  Congdon 

236 

V.  Jones 

530,  537 

r.  ilangum 

358 

V.  Phillips 

126 

V.  Waugli 

142 

V.  Purington 

*152 

Place  V.  Delegal 

28,  507 

V.  Rounds 

513 

Plaisted  v.  B.  &K.  Steam  Naviga-' 

V.  Stevens 

425 

tion  Co. 

636,  647 

Phillis  V.  Gentin 

332 

Planters'  Bank  v.  Sellman 

236 

Philpot  V.  Brvant 

236 

Piatt  V.  Drake 

235 

V.  Wallet 

547 

V.  Hibbard  606,  618,  62 

0,  622.  653 

Phipps  V.  Chase 

*233 

Pleasants  v.  Pendleton 

*449 

Phoenix  Bank  v.  Hussey 

238 

V.  Pleasants 

332 

Piatt  V.  Eads 

224 

Plimmer  v.  Sells 

43 

V.  Oliver 

126 

Pluckwell  V.  Wilson 

702 

Pickard  v.  Low 

455 

Pole  V.  Ford 

236 

V.  Valentine 

230 

PolhiU  V.  Walter 

*56,  57 

Pickas  V.  Guile 

583 

Pollard  i:  Shaafter 

425,  426 

Pickering  v.  Barclav                 ' 

639 

i\  Stanton 

142 

V.  Busk  41,  43,  *  50 

,52,*  84 

Pollock  V.  Stables 

*50,  *69 

V.  Dowse  a 

472,  473 

Pomeroy  v.  Donaldson 

645 

INDEX  TO  CASES  CITED. 


Ixxi 


Page 

Poraeroy  v.  Smith  *  602 

Pomfret  v.  Kicroft  425,  608 

Pond  V.  Underwood  68 

Ponder  v.  Carter  *  37 

Pool  V.  Pratt  276,  545 

Poole's  Case  432,  *  433, 

Poole  V.  Hill  27 

V.  Smith  241 

Pope  V.  Nance  220 

1-.  Randolph  *140 

Poplewcll  r.  Wilson  211 

Porter  I'.  Ballard  *197 

I'.  Bank  of  Eutland  *66 

V.  Hildcbrand  720 

V.  Langliorn  500 

V.  Pettingill  -449 

V.  Wilson  *  152 

Porthouse  v.  Parker  163 

Portland  Bank  v.  Hvde  *  141 

Post  V.  Kimberlv      '*  137,  *  148,  -  152 

V.  Post        "  -433 

Postlethwaite  v.  Parkes  553 

Postmaster-General  r.  Reeder  505 

Potter  V.  Deboos  546 

V.  Mayo  539 

V.  Sanders  407 

V.  Tyler  214 

Potts  t'.  Henderson  *54 

Pouciicr  V.  Norman  539 

Ponfjett  V.  Tompkins  565 

Pourie  v.  Eraser  *  44 

Powell  V.  Brown  357 

V.  Edmunds  416 

V.  Graham  109 

V.  Lyles  457 

V.  Mvers  673,  674 

V.  Tuttle  *  72 

Power  V.  Barham  463 

V.  Pinnie  -212 

Powis  V.  Smith  23 

Powles  V.  Page  *  66 

Powlev  V.  Walker  426 

Pownal  V.  Perrand  393 

Poydras  v.  Mouraia  339 

Pratt  V.  Hutchinson  121 

V.  Russell  308 

Pray  ?;.  Gorham  257 

■  V.  Maine  218,  496 

Prebble  v.  Boghurst  362 

Precious  v.  Abel  *  50 

Prentice  v.  Achom  311 

?;.  Zane  *217 

Prentiss  v.  Danielson  226 

V.  Sinclair  *  144 

Prescott  V.  Brinsley  *  2 1 2 

V.  Brown  286 

V.  Elms  *433 

V.  Elinn  43 

r.  Hull  *197 

Preston  v.  Dayson  *233 

Prcstwick  v.  Marshall  43.  293 


Prewett  v.  Carruthers 
Price  V.  Alexander 

V.  Benington 

V.  Easton 

V.  Hewett 

V.  Neale 

V.  Powell 

V.  Seaman 
Pride  v.  Earl  of  Bath 
Priestley  v.  Eowlcr 
Prince  v.  Clark 
Princeton  v.  Gulick 
Pringle  v.  Phillips 
Prior  V.  Hembrow 


Page 

308 

94 

313 

389 

265 

220 

670 

370 

564 

528 

69,  *71 

*145 

214 

111 


Pritchard  v.  Schooner  Lady  Horatia  ^-  67 

Probart  v.  Knouth  246 

Proctor  r.  Keith  425 

V.  Nicholson  -  627,  632 
Proprietors  of  Canal  Bridge  v. 

Gordon  *118 
Proprietors  of  Trent  Navigation 

V.  Wood  634,  635,  643 

Prosser  r.  Edmonds  193,  194 

V.  Hooper  475 

Prudence  v.  Bermodi  342 

Pudor  V.  B.  &  M.  R.  R.  Co.  722 

Pugh  V.  Currie  126,  *129 

V.  Durfee  *  217 

Pulsifer  v.  Hotchkiss  389 

Pultncy  r.  Keymer  *  80 

Putnam  r.  Sullivan  226 

17.  Wise,  *  131,*  137 

Pyle  &e.  v.  Cravens  243 

Q- 

Quarles  v.  Quarles  356 

Quarman  v.  Burnett  -  92 

Queen,  The.  v.  Wheeler  432 

Queiroz  v.  Trueman  *  80 

Quincv  V.  Quincv  295 

r.  Tilton  -490 

^.r  parte  432 

Quinn  v.  Fuller  163 

R. 


Rabaud  v.  De  Wolf 

496, 

*497 

Rackstraw  v.  Imbcr 

*  140 

Radford  v.  Smith 

44 

5,  4.50 

Ragan  v.  Kennedy 

443 

Railton  r.  Hodgson 

53 

V.  Mathews 

-497 

Rainsford  v.  Fcnwick 

245 

Rainwater  v.  Durham 

246 

Raleigh  v.  Atkinson 

59 

RamduloUday  v.  Darieux 

225 

Hamsbotham  r.  Cator 

-212 

Ramsay  v.  George 

286 

Ranay  v.  Alexander 

450 

Ixxil 


INDEX   TO    CASES    CITED. 


Eand  v.  Plnbbard 
V.  Matlicr 

Eandall  v.  Harvey 
V.  Morgan 
V.  Sweet 
V.  Eandall 
V.  Ehodes 


Page 
*205 
380 
3C7 
554 
246 
567 
472 


V.  Van  Vechtcn  47,   *  58,   94, 

*  118 

Eandle  v.  Harris  499 

Eandleson  v.  Murray  93 

Eangcr  v.  Gary        "  215 

i\  Carey  -217 

Eankin  v.  Lydia  345 

V.  Matthews  416 

Eann  v.  Hughes        .  8, 355 

Eansom  v.  Mack  235 

Eapelye  v.  Bailey  -  508 

V.  Mackie  -441 

Eaphael  v.  Boehm  ^*  103 

Eapp  V.  Latham  161 

Eathbun  v.  Payne  701 

Eattoon  v.  Overackcr  111 

Eawlings  v.  Boston  329 

Eawlinson  v.  Stone  *  205 

Eawlyns  v.  Vandyke  251,  256,293.294, 

'  302 

Eawson  v.  Johnson  *  449 

Eayne  i-.  Orton  27 

Eayner  v.  Grote  55 

Eaymond  v.  Fitch  109,  110 

V.  Loyl  245,  257 
V.  Proprietors  of'Crown 

&  Eagle  Mills  55 

Eeab  v.  Moor  519,  522 

Eead  v.  Cutts  -514 

i\  Legard  291 

V.  Pusser  559 

V.  Eann  *  84 

Ecading  I'.  Blackwell  115 

Eeakert  v.  Sanford  293 

Eeddick  v.  Jones  *  217 

Eedding  v.  Hall  426,  608,  610 

Eedhcad  r.  Cator  515 

Eedman  i'.  Eednian  555 

Eeed  v.  Garvin  493 

r.  Full  urn  *  503 

V.  Howard  178 

V.  Jcwett  443,  453 

V.  Marsh  222 

V.  IMoore  294 

V.  Murphy  *136 

w.  Noe  417 

V.  Shepardson  *174,  *  177 

V.  Wilmott  443 

V.  Wood  472 

Eeedie  v.  Lond.  &  N.  Western 

Eailway  Co.  *90. -92 

Eeedy  v.  Seixas  235 

Eees  V.  Lines  540 

Eeese  v.  Bradford  *174 


Page 

Eeeside  v.  Knox  *  211 

Eeevc  v.  Bird  429,  430 

Eeeves  v.  Capper  597,  601 

V.  The  Ship  Constitution    -602 

Eegina  v.  Smith  527,  533 

V.  Welch  -529 

V.  Millis  560,  561 

Eeid  V.  Barber  458 

V.  Hollinshead  125,  133 

V.  Morrison  229 

v.  Nash  494 

Ecinicker  v.  Smith  *3ll 

Eelf  r.  Ship  Maria  318 

Earner  I'.  IJowncr  *233 

Eemick  v.  O'Kylc  227 

Ecmington  v.  Harrington  -  233 

Eenaux  v.  Teakle  288,  290 

Reniger  v.  Fogossa  6 

Eenner  v.  Bank  of  Columbia  230 

Eennick  v.  Ficklin  297 

Eeno  V.  Hogan  707,  718 

Eenteria  r.  Euding  -239 

Eenwick  v.  Williams  216 

Eesor  v.  Johnson  *  532 

Eew  I'.  Pettet  *  103 

Ecx  V.  Bellringer  120,  -  120 

V.  Billingshurst  565 

i\  Birdbrooke  520 

r.  Bower  120 

V.  Brampton  521 

V.  Christ's  Parish  519 

V.  Cole  262 

V.  De  Hales  Owen  534 

V.  Friend  256 

V.  Great  Borden  579 

V.  Great  Wigston  262 

V.  Gutch  88 

V.  Hanger  601 

V.  Hertford  573 

V.  Ivens  -627 

V.  Loudonthorpe  432,  *  433 

V.  Manning  *176 

V.  Mary  Mead  298 

U.Miller  120 

V.  Milsom  -206 

V.  Munden  260 

V.  Nutt  88 

I'.  Pedley  -  92 

V.  Shatton  *  85 

I'.  St.  John  521 

V.  Varlo  120 

V.Webb  121 

V.  Westwood  -120 

I'.  Wroxton  565 

Eeynell  v.  Lewis  43,  *  122 

Eeynolds  v.  Douglass  503 

V.  Shuler  *  433 

V.  Eowley  41 

V.  Toppan        -  136,  655,  657 

V.  Waller  311 

Ehca  V.  Ehenner  306 


INDEX   TO    CASES   CITED. 


ixxiii 


Page 

Rhines  v.  Phelps  454 

Rhode  V.  Thuaites  -441 

Rhodes  v.  Lindly  208 

Rice  V.  Austin  *  175 

V.Barnard  126,  *  174 

V.  Bixler  364 

V.  Cade  340 

V.  Dwight  Man.  Co.  522 

V.  Gordon  415 

I'.  Peet  311 

V.  Stearns  219 

Rich  V.  Aldred  578 

V.  Basterfield  -  92 

V.  Jackson  416 

V.  Knceland  643 

V.  Lambert  648 
Richards  v.  The  London  &c.  Rail- 
way                         *  652,  664, 673 

Richardson  v.  Boright  -  273 

V.  Brown  463 

V.  Duncan  319,  320 

V.  Prencli  159 

u.  Goss  484,-490 

V.  Johnson  459 

V.  Langridge  *433 

V.  Lincoln  219 

V.  Mellish  365 

V.  Strong  312 

v.  Wyatt  *128 

Riches  v.  Brigges  582,  583 

Richmond  Man.  Co.  v.  Stark  '  47 
Richmond  Trading  &c.  Co.  v.Far- 

quar  465 
Richmond  v.  Smith          624,  625,  *  627 

Rickets  v.  Dickens  457 

Ricketts  v.  Weaver  109,  110 
Ricks  V.  Dillahunty            457,  458,  463 

Riddell  v.  Sutton  109 

Riddle  I'.  Varnum  -441 

Riddlesden  v.  Wogan  564 

Ridgeley  v.  Crandall  244 

Ridgway  v.  English  *532 
V.  Hungerford  Market 

Co.  519,  526 

W.Philip  *145 

Ridgway's  Appeal  *  132 

Kig'by  V.  Hewitt  702 

Right  V.  Cuthell  45 

17.  Darby  •      *433 

V.  Bawden  -  433 

Rigs  V.  Cage  *61 

Riley  w.  Home  711,719 

Ringgold  V.  Ringgold  115 

Ripka  V.  Pope  227 

Ripley  v.  Chipman  522 

2,'.  Kingsbury  *  147 

V.  Watcrworth  *127 

Ritchie  V.  Atkinson  387 

Rix  V.  Adams  368 

Roach  V.  Thompson  *33 

V.  Quick  246 


Page 

Robards  v.  Hutson 

306 

Bobbins  v.  Fennel 

*73 

Roberts  v.  Barker 

431 

V.  Eden 

*212 

I'.  Havelock 

387 

V.  Jenkins 

473,  474 

V.  Mason 

*233 

V.  Morgan 

463 

V.  Moreton 

393 

V.  Ogilby 

678 

V.  Peake 

208 

V.  Rockbottora  Co. 

-529 

V.  Tucker 

530 

V.  Turner  618,  -652 

V.  Wyatt  601,  609 

Robertson  u.  Breedlove  215 

V.  Ewell  443 

V.  Kennedy  639,  642 

V.  Kensington  -212 

V.  Kctchum  41 

V.  Livingston  *  50 

V.  March  378 

V.  Smith  12,  26,  163 

V.  St.  John  422 

Robbins  v.  Bacon  188,-191,  *  1 97 

V.  Eaton      269,  270,  -273,  280 

V.  Cooper  -*  175 

V.  Hay  ward  *  103 

Robinson  v.  Anderton  457 

V.  Baker  683 

V.  Blen  224 

V.  Cone  701,  702 

V.  Crowder  155 

V.  Day  226 

V.  Dunmorc  640,  651 

V.  Greinold  288 

V.  Gleadow  53 

V.  Hindman  518 

V.  Hofman  163 

V.  Lyall  *  67 

V.  Lyle  37 

V.  Lyman  215 

V.  McDonnell  4,37 

i;.  Musgrove    415,   416,    417, 

451 

V.  Nahon  294,  295,  304 

V.  New  York  Ins.  Co.        537 

V.  Offutt  512 

V.  Reynolds  220,  306 

V.  Robinson  *  103 

V.  Thompson  *169 

V.  Threadgill      373,  584,  585 

V.  Turpin  666 

V.  Walker  12 

V.  Walter  632 

V.  Ward  97,.*  98 

V.  Wilkinson  J42 

V.  Yarrow  43 

Robison  v.  Gosnold  295 

Robson  V.  Bennett  229 

V.  Curlewis  235 


Ixxiv 


INDEX  TO   CASES   CITED. 


*51. 


Eodgers  v.  Smith 
Rodmau  i\  Zillcy 
Rodney  v.  Strode 
Rodrigucs  v.  Habersham 
Rodriguez  v.  Heifcrnman 
Roe  d.  Brune  v.  Prideaux 
d.  Durant  v.  Doe 
d.  Gregson  v.  Harrison 
I'.  Harrison 
V.  Hayley 
V.  Prideaux 
Rogers  v.  Boehni 
V.  Bumpass 
V.  Clifton 
V.  Hackett 
I'.  Hurd 
V.  Knech\nd 
V.  Langford 
V.  March 
V.  Rogers 
V.  Traders  Ins.  Co. 
V.  Thomas 
Rolfe  V.  Ahbot 
Rollins  V.  Stevens 
Rolls  V.  Yate 
Rolt  r.  Watson 
Rood  V.  Jones 

V.  Winslow 
Roof  V.  Stafford 
Rooke  I'.  Midland  Railway  Co 
Rooth  V.  Quinn 
V.  Wilson 
Root  V.  Lord 
Roots  I'.  Lord  Dormer 
Roper  V.  Stone 
Rosa  V.  Brotherson 
Roscorla  v.  Thomas 
Rose  (\  Beatie 
V.  Bowler 
V.  Clarke 
v.  Daniel 
V.  Poulton 
V.  Story 
Ross  V.  City  of  INIadison 
V.  Hill 
V.  Johnson 

V.  Turner  

Ross's  Exr.  v.  McLauclilan's  Admr.  363 

Rosse  r.  Bramsteed  632 

Rossiter  v.  Chester  675 

V.  Rossiter  55 

Roswel  V.  Vaughan  457 

Rotch  V.  Hawes  608 

Rothschild  v.  Corney  218 

r.  Currie  230 

RothwcU  V.  Hum.plircys  *  1 57 

Roiith  V.  Thompson  45 

Routledge  v.  Grant  418,  440 

Row  V.  Dawson  1 93 

v.  Pulver    '  509,  511 

Rowan  v.  Kirkpatrick  *  103 


Page 
457 
414 
25 
472 
*80 

-433 

*433 
427 
506 

*201 

*69 

77 

285 

*529 

225 

244,  270 

#44 

218 

*48 

115 

194 

476,  478,  479 

249 

162 

*14,  31 

241 

366 

320 

243 

673 

*157 
574 

-449 
417 
355 

*  217 

1,  396,463 

.    467,  468 

109 

193 

276 

*141 

-449 

*118 
634 
622 

*200 


21 


Rowe  V.  Pickford 
V.  Tipper 
V.  Young 
Rowlandson,  ex  parte 
Rowley  v.  Ball 

V.  Bigelow 

V.  Stoddard 
Rowning  v.  Goodchild 
Rucker's  Admr  v.  Gilbert 
Ruffin,  ex  parte. 
Ruggles  V.  Patten 
Rumney  v.  Keycs 
Rundel  v.  Keeler 
Rundle  v.  Moore 
Runqist  v.  Ditchell 
Runyan  v.  Caldwell 

V.  Nichols 
Runyon  v.  Montford 
Rushy  V.  Scarlett 
Rushforth  v.  Hadfield 
Russell  V.  Babcock 

V.  Brooks 

r.  Buck 

V.  De  Grand 

V.  Failor 

V.  Fillmore 

V.  Hankey 

V.  Langstaffe 

V.  NicoU 

V.  Palmer 

V.  Perkins 

V.  Phillips 

V.  Skipwith 

V.  Wiggin 
Rupart  V.  Dunn 
Rust  1-.  Larue 

V.  Nottidge 
Rutgers  v.  Hunter 

V.  Lucet 
Rutherford  v.  Ruff 
Rutland  Rail  Road  Co.  v 
Rutter  V.  Blake 
Ryall  V.  Rollc 
Ryan  v.  Sans 

V.  Trustees 
Ryberg  v.  Snell 
Ryder,  In  re 


Page 

484 

236 

220 

*136 

241 

239,  479,  486 

24 

623 

327 

•-173,-180 

227 

251,  295,  302 

261 

*69 

*50 

606 

*98 

*233 

43,  47 

*602 

496 

286 

370 

*382 

*33 

454 

*73 

*  205,  224 

-441 

420 

495,  506 

222 

325 

222 

467 

539 

-529 

422 

531, 584 

311 

Cole  53 

474 

601 

43,  59,  304 

495 

-239,  489 

252,  254,  257 


Sackctt  V.  Johnson 

Sadler  v.  Evans 

V.  Hobbs 

V.  Nixon 

Sage  V.  Wilcox 


535 

67 

28 

*32,  *3.5,  139 

367,  496 


Sager  v.  Portsmouth  &c.  R.  R.  Co.  638, 

707,  710,  717 

Sainsbury  v.  Jones  414 

V.  Parkinson  *  205 

St.  Alban's  Steamboat  Co.  v.  Wil- 

kins  522 


INDEX   TO    CASES    CITED. 


Ixxv 


Page 

St.  John  V.  Van  Santvoord        688,  689 

V.  St.  John  298 

St.  Mary's  Church,  Case  of  -  120 

Salem  Bank  v.  Gloucester  Bank  41,  586 

Salisbury  v.  Marshall  423,471 

V.  Stainer  468 

In  re  114 

Salmon  v.  Davis  162 

Salteu.  Field  59,-490 

Slater  V.  Burt  230,  235 

Saltmarsh  y.  Tuthill  -212 

Saltus  V.  Everett  -  239,  683 

Samms  V.  Stewart  -641 

Samson  V.  Thornton  -206 

Samuel  Book,  In  re  262 

Sanborn  v.  French  362 

V.  Little  *  196,  *  199 

Sanders  v.  Spencer  *  627 

u.  Filley  391 

Sanderson  v.  Bowes  226 

Sanderson  v.  Milton  Stage  Co.       *170 

Sandford  u.  Mickles  -217 

V.  Dodd  386 

Sandham,  ex  parte  167 

Sandiland,  e.c  parte  299 

Sandilands  v.  Marsh  160,  *  168 

Sands  v.  Taylor  447 

Sanger  v.  Eastwood  ^  454 

San  Jose  Indiano,  The  -173 

Sargent  v.  Gile  -449 

V.  Southgate  215 

Sasportas  i;.  Jennings  321 

Sasscer  v.  Farmers  Bank  234 

Satterlee  v.  Groat  -[641 

Saunders  v.  Johnson  23 

V.  Wakefield  6 

Saunderson  v.  Griffiths  *  44 

V.  Judge  228 

V.  Marr  243,  264 

Savage  V.  Aldren  -212 

U.King  *212 

V.  Rix  39,  48,  55,  *  58 

Savage  Man.  Co.  r.  Armstrong        447 

Saville  v.  Robertson  *  148,  - 152 

Savings  Bank  v.  Bates  230 

V.  Ela  514 

Sawyer  v.  Cutting  288 

V.  Fisher  -449,  681 

V.  Hoovey  215 

V.  Joslin"  483 

V.  Patterson  513 

Sayer  u.  Bennet  *61,*173 

V.  Chaytor  11 

Sayre  v.  Flournoy  285 

Scarman  v.  Castell  527 

Scarpcllini  v.  Atcheson  285 

Schemcrhorn  v.  Vanderheyden  355 

Sciiieff'elin  v.  Stewart  *  103,  *  104 

Schimmclpennich  i-.  Bayard  *44,    52, 

222 


Page 

Schmalz  v.  Avery  53 

Schmidt  v.  Blood  606 

V.  Livingston  414 

Schneider  v.  Heath  52,  473 
Scholefield  v.  Eichelberger  *  172,  - 173, 

*  233 

Scholey  v.  Goodman  300 

Scliool  Dist.  V.  Bragdon  264 

Schroyer  v.  Lynch  622,  623 

Schuyler  v.  Russ  459,  473 

Scott  V.  Alexander  -  233 

V.  Bevan  *  239 

V.  Buchanan  244,  -  273 

V.  Colmesnil  143,  *  144 

V.  Crane  578 

V.  Godwin  *  14,  26 

V.  James  285 

r.  Pettit  *485 

V.  Liffbrd  -  233 

f.  Porcher  *  191 

r.  Scott  458,  555 

I'.  Williams  332 

Scotthorn  v.  South  Staffordshire 

R.  R.  Co.  675,  689 

Scouton  I'.  Eislord  308,  309 

Scrace  v.  Wliittington  *99 

Scranton  v.  Baxter  591 

Screws  v.  Roach  438 

Scruggs  V.  Gass  221 

Scrugham  v.  Carter  *  177 

Scudder  r.  Andrews  389 

Scudder  v.  Woodbridge  335 

Seaborne  v.  Maddy  '    49 

Seacord  v.  Burling  211 

Seagood  v.  Meale  555 

Seagraves  v.  City  of  Alton  *  1 18 

Seaman  v.  Fonereau  *  62 

Seaton  v.  Benedict  288,  289,  292 

V.  Booth  30,  417 

V.  Henson  23 

Seaver  v.  Morse  522,  524,  527 

V.Phelps  311 

Seeley  v.  Bisbee  225 

Segar  r.  Edwards  *  69 

Seidenberder  v.  Charles  *  382 

Seignior  &  Wolmer's  Case  *  52 

Seixas  v.  Woods  460,  463,  466 

Selkrig  u.  Davies  *  127 

Sellen  t'.  Norman  527,  -  532 

Seller  v.  Work  .                582 

Selway  v.  Fogg  540 

V.  Hollo  way  -  654 

Senior  v.  Armytage  426,  430 

Sentancc  v.  Poole  312 

Sergeson  v.  Sealey  313 

Servante  r.  James  *13,  15,  30 
Seventh  Ward  Bank  v.  Hanrick    -  233 

Severance  r.  Kimball  319 

Seville  v.  Ciiretien  326 

Sewall  V.  Allen  650 


Ixxvi 


INDEX  TO  CASES  CITED. 


Page 

Sexton  V.  Pike  5.39 

Seymour  v.  Brown  613,  614,  616 

V.  Delancy  311,  414 

V.  Gartsido  544 

Shackcl  V.  Rosier  379,  381 

Shafher  v.  The  State  563 

Siiarington  i\  Stratton  354 

Sharp  V.  Grey  698 

V.  Conklin  29 

V.  Teese  *  382 

Sharrod  v.  Lond.  &  N.  "Western 

Railway  Co.  88 

Shaw  V.  Arden  >      *  85,  *  99 

V.  Berry          •  *  112,  624 

V.  Boyd  *  268 

V.  Fisher  414 

V.  Kay  425 

V.  Loud  *  33 

V.  Nudd  42,  *95 

V.  Pratt  24,  162 

V.  Reed  224 

V.  Sherwood  31 

V.  Stone  *81 

V.  Thompson  292 

V.  No.  Midland  Railway  718 

Shearman  v.  Akins  316 

Shed  V.  Brett  228,  235 

V.  Pierce  24 

Shee  V.  Hale  427 

Slieehy  w.  Mandeville  12 

Sheerman  i\  Thompson  379 

Shelden  v.  Robinson  643 

Sheldon  v.  Benham  235 

V.  Cox  437 

V.  Kendall  *  48 

Shelton  i;.  Homer  75 

V.  Livius  416 

V.  Pendleton  289,  303,  304 

V.  Springett  250,  260 

Shepard  f.  Hawley  163 

Shephard  v.  Watrous  320 

Shepherd  v.  Kain  465,  473 

V.  Mackoul  303,  304 

V.  Percy  *  75 

V.  Pybns  469 

V.  Temple  464 

Shepley  v.  Davis  -441 

Sherman  v.  Rochester  &  Syracuse 

R.  R.  '                528 

Sherwood  V.  JRobins  451 
Shiells  V.  Blackburne   *  74,   583,    587, 

588 

Shilcock  V.  Passman  *  98 

Shillibeer  v.  Glyn  373,  584 

Ship  Lavinia  v.  Barclay  *67 

Shipman  v.  Horton  243,  269 

Shippey  v.  Henderson  308 

Shore  v.  Lucas  477 

Short  r.  City  of  New  Orleans  190 

r.  Skipwith  *74,  77 


Page 

Short  V.  Stone 

548,  550 

Shorter  v.  Boswell 

331 

Shotwell  V.  Miller 

162 

Shubrick  v.  Salmond 

354 

Shultz  V.  Elliott 

428 

Shurlds  V.  Tilson 

*144 

Sibely  v.  Tutt 

*239 

Sibley  v.  McAllaster 

*33 

Siboni  v.  Kirkman 

111 

Sibree  v.  Tripp 

-191 

Sice  r.  Cunningham 

224 

Sickels  V.  Pattison 

522 

Sidaways  v.  Todd 

622 

Sidenham  and  Worlington's  Case         6 

Sidwell  V.  Evans  367,  368 

SifTken  v.  Wray  482 

Siffkin  V.  Walker  *  147 

Sigourney  v.  Lloyd  -  212 

V.  Munn  126,-173 

Sikes  V.  Johnson  264 

Silvernail  v.  Cole  363,  367 

Silvis  V.  Ely  366 

Simerson  v.  Branch  Bank  443 

Simmins  v.  Parker  332,  345 

Simonds  v.  Strong  *  144,  *  145 

Simmons  v.  Simmons  554 

V.  Swift  *441 

Simms  v.  Marryatt  457 

V.  Norris  259 

Simon  v.  Barber  256 

V.Miller  631 

Simpson  v.  Clayton  30 

V.  Hawkins  417 

V.  Potts  474 

V.  Robertson  247 

V.  Turney  236 

V.  Vaughn  29 

Sims  V.  Bond  53 

V.  Brutton  -158,  *  168 

V.  Chance  605 

V.  Harris  26 

V.  Willing  *  148,  *  151, -152 

Simson  v.  Cooke  507 

V.  Jones  -376 

Sinclair  r.  Pearson  87,  605 

I'.  Richardson  500 

Singer  v.  McCormick  5,21 

Siordet  r.  Hall  638 

Sivewright  v.  Archibald  401 

v.  Richardson  *  74 

Skeate  r.  Beale  321,362 

Skelton  v.  Brewster  499 

Skingley  tn  re.  425 

Skinner  v.  Dayton  94,  *  171 

V.  Gunn  *  52 

V.  London,   Brighton  & 

Southcoast  Railway 

Co.  607,  695 

V.  Somes  *196 

V.  Stocks  53 


INDEX   TO   CASES   CITED. 


Ixxvii 


Page 

Skinner  r.  ITpshaw  681 

Slackhouse  v.  O'Hara  ^  99 

Slater,  ex  parte  162 

V.  Magraw  11 

Slaughter  v.  Green  613 

Slave  Grace,  The  345 

Slaymakcr  v.  Irwin  '           401 

Sleati'.  Facg  711,719 

Sleath  V.  Wilson  700 

Slingerland  v.  Morse  578 

Slingsby's  Case  *13,  *14,  15, 17,  19,  25 

Sloan  V.  Gibson  356 

Slocombe  v.  Gliibb  278 

Slocura  r.  Fairchild  718 

Slubey  v.  Hey  ward  *  441,  483 

Slv  V.  Edgley  88 

Small  V.  Atwood  462 

r.  Browder  *198 

V.  Moates  487 

Smallpiece  v.  Dawes  292 

Smart  i-,  Sandars  58,  *6l 

Smedes  v.  Bank  of  Utica  *  73,  586 

Smiley  v.  Bell  193 

Smith  V.  Algar  366,  368 

V.  Barker  *175 

V.  Barrow  139,  *  140 

V.  Bartholomew  363 

V.  Berry  195 

f.  Birmingham  Gas  Co.  117 

V.  Bowles  482 

r.  Braine  -206,-212 

V.  Bruning  557 

r.  Burnham  *  131,  142 

V.  Chester  220 

r.  Clark  -212 

V.  Clarke  614 

V.  Condry  *75 

V.  Craven  *  148 

V.  Dann  502 

V.  Dearlove  629,  633 

U.Edwards  *  166,  *  174 

I'.  Estate  of  Steele  512 

V.Evans  ^268,-268 

V.  Field  -  490 

V.  Foster  -449 

V.  Gibson  246 

V.  Goss  *  490 

V.  Greenlee  418 

V.  Hayward  520,  527 

V.  Henry  442 

V.  Hiscock  213 

r.  Hodson  46,  47 

V.  Home  711 

V.  Hunt  31 

V.  Hyde  540 

V.  Jackson  *127 

V.  Kelley  -273 

i\  Kingsford  527 

V.  Knox  216 

V.  Lascelles  *  73,  *  74,  446 

V.  Little  -  233,  235 


Smith  V.  Lynes 

V.  Marrablc 
V.  Marsack 
V.  IMawliood 
V.  Mayo 
V.  JMcClure 


Page 

-449 

471 

220 

*382 
270,  276 
228 


V.  Mechanics  &   Traders 

Bank  214 

V.  Mercer  219,  220 

V.  Montgomery  494 

V.  Moore  453 

V.  Mullet  234 

1-.  Niles  615,616 

V.  Pliiladelphia  Bank  208 

V.  Pierce  646 

V.  Plomer  286 

V.  Pocklington  12 

V.  Proprietors  &c.  *  118 

V.  Keadfield  322 

V.  Rice  467 

V.  Seward  645 

V.  Shaw  *  239 

V.  Shepherd  636 

V.  Sherman  553 

V.  Simonds  109,  110 

V.  Sleap  68 

V.  Smith         115,  *128,  298,  358 

V.  Spooner  312,  315,  316 

V.  Stafford  554 

V.  Stone  162 

I'.  Surman  444 

V.  Tallcott  22 

u.  Tarlton  *  129,  *  131 

V.  Thompson  539 

V.  Tracy  540 

r.  Van  Loan  *217 

V.  Ware  360 

V.  Watson  125,  133 

V.  Weed  369 

I'.  Whiting  *  112,  235 

V.  Williams  472 

V.  Winter  512 

V.  Wright  676 

r.  Wyckoff  *205 

Ex  parte  -  1 73 

In  re  *175,  178 

Smith's  Adm'r  v.  Lamberts  *  99 

Smithson  v.  Garth  25 

Smout  I'.  Ilbcry  57,  *61 

Smy ley  u- Head  -497 

Smyrl  v.  Niolon  637 

Smyth  r.  Craig  *61 

V.  Tairkersley  *137 

Snee  v.  Prescot  479 

V.  Trice  333,  335 

Sneider  v.  Geiss  *627,  722 

Snell  V.  Moses  467 

V.  The  Independence  528 

Snelling  ;).  Lord  Huntingfield         -529 

Snevilv  v.  Head  308 

Snow  V.  Eastern  R.  R.  Co.  722 


Ixxviii 


INDEX  TO  CASES  CITED. 


Page 

Snow  V.  Perkins  235 

Snowdon  v.  Davis  67,  68 

Snyder  v.  Riley  215 

V.  Sponable  *  64 

Society  in  Troy  v.  Goddard  378 

V.  Perrv  377,  378 

Society,  &c.  v.  Wheeler'  360 

Sohier  v.  Loring  237 

Solarte  v.  Palmer  235 

Solly  V.  Forbes  24,  26,  162 

V.  Rathbone      *72,  79,  *S0,  *84 

Solomon  r.  Gregory  512 

V.  Kimmel  355 

Solomons  i'.  Bank  of  England  -206, 

213 

Somerville  v.  Williams  230 

Sorsbie  v.  Park  15,  16,  17,  26 

South  Carolina  Soc.  v.  Johnson        504 

South,  ex  parte  188 

Southard  r.  Steele  *168 

V.  Rexford  546,  550,  552 

Southcote  V.  Hoare  15,  25 

Southcote's  Case  573,  594 

Southern  Ins.  Co.  v.  Gray  *48 

Southerne  v.  Howe  459 

Souther's  Case  334 

Southwick  V.  Estes  88 

Sower  V.  Bradfield  12 

Spain  V.  Arnott  518,  521 

Spalding  v.  Adams  601 

V.  Ruding  *  490 

V.  Vandercook  389 

Spann  v.  Baltzell  -  233,  235 

Snarhawk  v.  Allen  115 

V.  Buell  242 

r.  Russell  -180 

Sparr  v.  Wellman  722 

Spalding  v.  Alford  540 

Speed  V.  Philips  362 

Spence  v.  Chadwick  425,  675 

Spencer  v.  Billing  *  166 

V.  Daggett  645 

V.  Durant  *  14,  26 

V.  Field  48 

V.  Harvey  226 

V.  Negro  Dennis  343 

V.  Wilson  59 

Spencer's  Case  *201 

Sperry,  in  re  -  180 

Spies  V.  Gilmore  229 

V.  Newberry  235 

Spindler  v.  Grellet  226 

Spotswood  V.  Barrow  526 

Sprague  v.  Baker  *200 

Spreadbury  v.  Chapman  288 

Sprigwell  v.  Allen  457 

Spring  V.  Coffin  386 

Springer  v.  Hutchinson  493 

Springfield  Bank  v.  Merrick  *  382 

Sprott  v.  Powell  *106 

Sproul  V.  Hcmmingway  *  90 


Scjuier  v.  Hunt 
V.  Mayer 
Squire  v.  Tod 

V.  Whipple 
Staats  V.  Howlctt 
Stables  ?'.  Eley 
Stackpole  v.  Arnold 
Stafford  v.  Roof 

in  re 
Stainbank  v.  Fcnning 
Staines  v.  Shore 
Stalker  v.  McDonald 
Stammers  v.  Macomb 
Standen  v.  Chrinnas 
Stanly  v.  Hendricks 
Stanley's  Appeal 
Stanton  v.  Bell 

V.  Blossom 
V.  Eager 
V.  Small 


Page 

445 

432 

414 

-529 

160,  507 

*145,  700 

8,*  48,  48 

269 

*103 

*67 

418 

*217 

289 

425 

499 

115 

587 

235 

-239,  *490 

439 


V.  Wilson       245,  252,  255,  256 

Stapilton  v.  Stapilton  364 

Staples  u.  Emery  431,432 

Stark  t'.  Parker  519,522 

Starr  v.  Peck  560 

V.  Taylor  306 

Startup  V.  McDonald  445,  450 

State  V.  Gaillard  355,  467 

V.  Hale  334 

V.  Jeans  330 

V.  Mann  334 

V.  Mathews  623 

V.  Reynolds  509,  511 

V.  Samuel  341 

V.  Whyte  335 

State  Treasurer  v.  Cross  377 

Stead  V.  Salt  *  168 

Steam  Nav.  Co.  v.  Dandridge  646 

Stearns  v.  Haven  133,  *  164 

r.  Marsh  *  602 

Stebbins  v.  Palma-  110,  553 

V.  Sherman  308 

V.  Smith  369 

Stedman  v.  Gooch  220 

Steel  V.  Jennings  -158 

V.  Steel  *  532 

Steele  v.  Harmer  *  122 

V.  Ins.  Co.  635 

Steers  v.  Lashley  215 

Steiglitz  V.  Egginton  47 

Stem's  Appeal  115 

Stephens  v.  Badcock  *  76 

V.  Beal  285 

V.  Olive  301 

V.  Wilkinson  479 

Stephenson  v.  Hardy  293 

V.  Hart  684 

V.  Primrose  226 

Sterling  v.  Sinnickson  556 

Sterrv  v.  Arden  357 

Stetson  V.  Patton  47,  *  58,  94 


INDEX  TO  CASES  CITED. 


Ixxix 


Stevens  v.  Adams 

r.  Armstrong 

V.  Blanchard 

V.  Eno 

V.  Fuller 

V.  Robins 

V.  Wilson 
Stevenson  r.  Lambard 
Steward  )-.  Lonibe 
Stewart  v.  Alliston 

V.  Dougherty 

V.  Oakes 

V.  The  State 

V.  Trustees  of  Hamilton 
College 

V.  Walker 
Stikeman  v.  Dawson 
Stiles  V.  Farrar 

^      V.  Granville 
Stilk  V.  Mvrick 
Stocken  v.  CoUen 


Page 
539 
-92 
*217 
-441 
464 
*84 
*80 
428 
442 
416 
463 
346 
414 

379 
520 
266 
195 
258 
363 
407 

Stocker  r.  Brockelbank  *  136 

Stockley  v.  Stockley  311 

Stocks  u.  Dohson  *198 

Stockton  w.  Frey  691,696,700 

Stoddard  v.  Kimball  *  212,  -  212 

V.  Long  Island  Railroad 

Co.  705,  706,  707,  710,  718 
V.  Mix  364 

Stoddart  v.  Smith  417 

Stoddert  v.  Vestry  of  Port  To- 
bacco Parish  120 
Stokes  V.  Saltonstall  691,  692,  693,  696, 

699 

Stonard  v.  Dunkia  621 

Stone  V.  Carr  257 

V.  Codman  *  90,  93 

V.  Compton  -  497 

V.  Dennison  261 

V.  Gilliam  448 

V.  Lidderdale  194 

V.  McNair  293 

V.  Marsh  161 

V.  Peacock  -441 

V.  Pointer  457 

V.  Swift  -239 

V.  Waitt  660,  684 

V.  Withipool  264 

V.  Whiting  429 

V.  Wood  *  54 

Stonehouse  v.  Gent  *  67 

Stoolfoos  V.  Jenkins  264 

Storer  v.  Hunter  442 

V.  Logan  222 

Storr  V.  Crowley  658,  659,  674 

Story  V.  Johnson  -273 

V.  Lord  Windsor  *  64 

V.  Rifhardson  *20,  30 

Stouffer  V.  Latshaw  319 

Stoveld  V.  Hughes  *  485,  *  490 

Stowe  V.  Meserve  454 


Page 

S towel  V.  Zouch 

281 

Stowell's  Admr.  v.  Drake 

31 

Stracy  v.  Bank  of  England 

365 

Strader  v.  Graham 

345 

Strangboi-ough  v.  Warner 

373 

Strange  v.  Price 

235 

Strafford  Bank  v.  Crosby 

513 

Streatfield  v.  Halliday 

12 

Street  v.  Blay 

*475 

Streetery.  Horlock 

537 

Stretch  v.  Parker 

544 

Stretton  v.  Busnach 

'306 

Strihhlehill  v.  Brett 

-  556 

Strickland  v.  Coker 

278 

V.  Maxwell 

430 

V.  Turner 

437 

Strobes  v.  Caven 

*602 

Strong  V.  Natally 

673 

Stroud  V.  Marshall 

310 

Stuart  V.  Simpson 

536 

V.  Wilkins 

460 

Stubbs  r.  Lund 

-485,  486 

Stucky  V.  Clyburn 

459 

Stultz'c.  Dickey 

430 

Sturge  V.  Sturge 

415 

Sturges  V.  Crowninshield 

5 

Sturdevant  v.  Pike 

75 

Sturtevant  v.  Ballard 

443 

Sullivan  v.  Mitchell 

229 

V.  Sullivan 

298,  564 

Summeril  v.  Elder 

482 

Summers  v.  Ball 

299 

Sumner  v.  Ferryman 

320 

V.  Ford 

227 

V.  Williams 

108,  515 

Sunbolt  V.  Alford 

632 

Supervisors  of  Albany  Co.  v.  Dorr   623 

Surplice  v.  Farnsworth  423,  426 

Surtees  v.  Hubbard  *  191 

Surtell  V.  Brailsford  306 

Sussex  Bank  v.  Baldwin  225, 228,* 233 

Sutton  V.  Buck  -578 

V.  Grain  108 

V.  Irwine  162 

V.  Temple  423,471,607 

V.  Tatham  *  69 

V.  Tyrell  522 

V.  Warren  564 

Suydam  v.  Clark  401 

V.  Vance  512 

Swan  V.  Nesmith  79 

Swasey  v.  Vanderheyden  261 

Sweany  v.  Hunter  363 

Sweat  V.  Hall  300 

Sweet  V.  Pym  481 

Sweigart  v.  Berk  26 

Swetland  V.  Creigh  '203 

Swett  V.  Colgate  458,  463,  466 

V.  Patrick  29 

Swift  V.  Clark  318 

V.  Hawkins  355 


Ixxx 


INDEX  TO  CASES  CITED. 


Page 


Swift  V.  Tyson 

*2I7 

V.  Williams 

522 

Swigert  v.  Graham 

603 

Swindler  v.  Ililliard 

707,  718 

Swinford  v.  Burn 

538 

Swires  v.  Parsons 

*532 

Sydebotiiam,  exparte 

262 

Sydnor  v.  Hurd 

*48.  55 

Sykes  v.  Dixon 

374, 

* 

529,  -532 

V.  Giles 

40,* 

69 

419,  420 

V.  Halstead 

292 

Sylvester  v.  Crapo 

-217 

Symington  r.  McLin 

*51 

Symons  v.  James 

415 

T. 


Taffe  V.  Warnick 

432 

Taft  V.  Buff  urn 

#171 

&  Co.  y.  Pike 

-268 

Talbot  I'.  Gray 

-514 

Taintor  v.  Prcndergast 

55,  83 

Taitt,  ex  parte 

-180 

Tams  V.  Way 

215 

Tanner  v.  Moore 

509 

V.  Scovell 

483 

V.  Smart 

309 

Tansley  v.  Turner 

-441 

Tapley  v.  Butterfield        155,  *  156,  160 

Tappan  v.  Blaisdell  *  174,  *  175,  *  177 

Tapscott  V.  Williams  26 

Tarling  I'.  Baxter  *441, -441 

Tassell  v.  Lewis  •          235 

Tate  V.  Wymond  513 

Tatlock  V.  Harris  187.  188 

Tattersall  u.  Groote  -173 

Taunton  v.  Costar  434 

Taunton  Bank  v.  Richardson  231 

Tavloe  v.  Merchants  Fire  Ins.  Co."!  407 

Taylor  v.  Bank  of  111.  '  238 

V.  Blacklow  *  98 

V.  Brewer  538 

V.  Bryden  -233 

V.  Bullen  473 

V.  Carpenter  324 

V.  Chapman  429 

V.Coryell  *168 

V.  Croker  276 

V.  Dobbins  208 

r.  Field  *  177,*  179 

V.  Green  *  63 

V.  Henderson  *'152 

r.  Jones  225,371 

V.  Kymer  240 

V.  Mortindale  415 

V.Patrick  311,364 

.  V.  Pugh  550 

V.  Salmon  *  75 

V.  Savage  37 

V.  Snvder  229 


Page 

Taylor  v.  Terme  *  136 

V.  Trueman  240 

V.  Wells  ^          685 

V.  Wetmore  501 

V.  Whitehead  608 

V.  Young  *  145 

TeafF  v.  Hewitt  432 

Teague  w.  Hubbard  *141 

Teall  V.  Sears  -  652 

Tebbets  v.  Haskins  542 

Tebbs  V.  Carpenter  *  103 

Teed  v.  Elworthy  26 

Teesdale  v.  Anderson  465 

Tempest  v.  Fitzgerald  441 

Temple  v.  Hawley  278 

Templeman  v.  Biddle  430 

V.  Case  579 

Templer  v.  McLachlan  *  99 

Tenney  D.  Prince  -206.496 

Terrill  v.  Richards      *  132,  *  1 52,  *  1 66 

Territt  v.  Bartlett  *  382 

Terry  v.  Belcher  442 

V.  Fargo  41 

r.  Parker  225,  *  233 

V.  Wacher  *  76 

Thacher  v.  Dinsmore  8,  116 

Thacker  v.  Shepherd  28 

Thatcher  v.  Bank  of  New  York          43 

Thayer  v.  Clemence  *  200 

V.  Wadsworth  519,  522 

V.  Wendell  108 

V.  White  251 

The  Adventure  324 

The  Agricola  *  go 

The  Amiable  Nancy  *  75 

The  Fortitude  *  67 

The  Frances  *  84 

Tiie  Gratitudine  _            *  67 

The  Maria  *  90 

The  Newark  648 

The  Rebecca  648 

The  Brig  Sarah  Ann  *  67 

The  Schooner  Reeside  648 

The  Waldo  -        684 

Thickncsse  v.  Bromilow  -  158 

Thickstun  v.  Howard  624,  629 

Tiiimblethorp  v.  Hardesty  26 

Thing  V.  Libbey  271 

Thomas  and *  20 

r.  Bishop  *102 
V.  Boston  and  Providence 

R.  R.  Corporation  620,  648, 
663,  673 

V.  Cook  37,  429,  430 

V.  Davis  -514 

V.  Day  621 

V.  Dike  263,  523 

V.  Dow  513 

V.  Edwards  53,  55 

V.  Generis  345 

V.  Havden  424 


INDEX   TO    CASES   CITED. 


Ixxxi 


Page 

Thomas  v.  Hewes 

55 

V.  Newton 

213 

V.  Roosa 

208 

V.  Shillibeer 

190 

V.  Thomas 

355,  390 

V.  Williams 

380,  526 

Thomason  v.  Frere 

-173,  *  205 

Thomasson  v.  Boyd 

-273 

Thomett  v.  Haines 

418 

Thompson  v.  Andrews 

-173 

V.  Botts 

459,  474 

V.  Blanchard 

355,  443 

V.  Davenport  53,    55,   ^  82, 

83 

V.  Doming  239 

r.  Dominey  -239,487 

v.  Hale  216,218 

r.  Harding  *112 

t;.  Havelock  *75,  *85 

V.  Hervey  303 

V.  Lacy  623,  624,  632 

v.  Lay  270,271,309 

V.  Lindsay  467 

V.  Page  378 

V.  Patrick  593 

V.  Percival  188 

V.  Perkins  78,  79 

V.  Shepherd  -206,  216 

V.  Thompson  477 

V.  Tiles  444 

V.  Towle  458 

V.  Trail  -485 

V.  Williamson  133 

V.  Wilmot  332,  339 

Thomson  v.  Davenport  *48 

V.  Harrison  555 

Thorndike  v.  De  Wolf  133,  139 

Thorne  v.  Deas  582,  586 

Thornborow  v.  Whiteacre  362 

Thornton  v.  Davenport  443 

V.  Dixon  126,  *  127 

i\  Fairlie  365 

u.  Illingworth  271,274 

V.  Place  388 

V.  Wynn  *475 

Thorogood  v.  Bryan  702 

V.  Marsh  637 

Thorold  v.  Smith  46 

Thorpe  v.  Booth  221 

V.  Thorpe  369 

V.  White  523 

Thrupp  V.  Fielder  269,  270 

Thruston  v.  Thornton  401 

I'.  McKown  -  206,  -  21 7 

V.  Percival  539 

Thweatt  v.  Jones  *  37 

Tibbetts  u.  Towle  -449 

Tibbits  V.  George  188,  195,  *  197 

Tickel  V.  Short  *  73 

Tidewater  Canal  Co.  v.  Archer       *  75 


Page 

Tileston  v.  Nettlcton  498 

Tillier  v.  Whitehead  163 

Tillotson  V.  Boyd  *  200 

V.  McCrillis  258 

Tilton  V.  Russell  257 

Timbers  v.  Katz  285 

Tiramis  v.  Gibbins  221 

v.  Piatt  111 

Timrod  v.  Shoolbrcd  467 

Tinckler  v.  Prentice  381 

Tindal  v.  Bright  *  141 

V.  Brown  235 

V.  Touchberry  499 

Tingley  v.  Cutler  355,  356 

Tingrey  v.  Brown  *  112 

Tinsley  V.  Beall  215 

Tipper  v.  Bicknell  371 

Tippet  V.  Hawkey  31 

Tippets  V.  Walker  *  54 

Titchburne  v.  White  677,  720 

Tobey  v.  Lennig  235 

Tobias  v.  Francis  432 

Tobin  V.  Crawford  41 

Todd  V.  Emly  40 

V.  Gee  414 

V.  Stokes  301 

Tompkins  v.  Brown  309 

Tom's  Case  343 
Tonnawanda  R.  R.  Co.  v.  Hunger  701 

Toogood  V.  Scott  331 

Tooke  V.  HoUingworth  447 

Tookcr  V.  Bennett  163 

Tooley  v.  Windham  367 

Topham  v.  Braddick  *  76 

Torrcy  v.  Fisk  *  205 

Torriano  v.  Young  425 

Tourville  v.  Naish  *  64 

Toussaint  v.  Martinant  *32 

Towell  V.  Gatewood  463,  465 
Tower  v.  The  Utica  &c.  Railroad 

Co.  651 

Towers  v.  Moore  29 

Towle  V.  Leavitt  *  51,  418 

V.  Marrett  539 

Towne  v.  Wiley  264 

Townley  i\  Crump  *485,  489 

Townscnd  i'.  Carpenter  194 

V.  Dcvaynes  *  127 

I'.  Inglis  *44 

V.  Neale  23 

V.  Riddle  163,  509,  512 

Townsley  v.  Sumrall  237,  357 

•Towson  V.  Havre-de-Grace  Bank   628, 

630 

Tracey  v.  McArlton  305 

Tracy  v.  Oberlin  Exchange  Co.        422 

V.  Wood  575 

Traver  v. 370 

Travis  v.  Bishop  454 

Treasurers  V.  Bates  12 


Ixxxii 


INDEX   TO    CASES    CITED. 


Tugo 

Treat  V.  Orono  386 

Trcdwen  v.  Boui'iic  *  50,  *  122 

Tree  r.  Qiiiinp  565 

Trent  Navigation  Co.  v.  Harley        510 

Treuttcl  v.  Barandon  *80 

Trigg  V.  Faris  458 

Trow  V.  Vermont  C.  R.  II.  Co.  701,  702 

Trowbridge  r.  Cushman  *175 

Trousdale  v.  Darnell  *433 

Troy  Academy  v.  Nelson  377 

Trudcau  v.  Robinettc  329 

True  V.  Fuller  493 

V.  Rauney  563,  564 

Trueman  v.  Hurst  261 

V.  Loder  *  48 

Tructt  r.  Chaplin  364,  367 

Trumbull  v.  Tilton  308 

Turndy  i'.  Farrar  *  11 8 

Tubb  V.  Harrison  257 

Tucker  v.  Humphrey  484,  489 

r.  Justices  *105 

V.  Moreland  272,-273 

V.  Wilson  *  602 

V.  Woods  399 

Tuckerman  r.  French  501 

V.  Ncwhall  22 

Tuffncll  V.  Constable  383 

TuUidge  v.  Wade  553 

Tunison  v.  Cramer  503 

Tunnel  i'.  Pettijohn  G50 

Tunno  v.  League  22G 

w.  Trezevant  -180 

Tupper  V.  CadwcU  245,  246 

Turberville  v.  Whitehouse  261 

Turley  v.  Thomas  702 

Turner  v.  Bissel  -  136 

V.  Chrisman  361 

V.  Davies  *  37 

V.  Leech  236 

V.  Mason  521 

V.  Meymott  434 

r.  Robinson  ^85,519,526 

V.  Rookes  303 

V.  Trisby  245 

V.  Trustees  of  Liverpool 

Docks  -485,486 

Turney  r.  Williams  *  103 

V.  Wilson  641,  645,  648 

Turrill  v.  Boynton  513 

V.  Cranclay  632 

Turtle  V.  Muncy  286 

r.  Worsley  306 

Turton  v.  Benson  555 

Tuscumbia  R.  R.  Co.  r.  Rhodes       215 

Tuttle  V.  Cooper  *152 

V.  Love  399 

V.  Swett  -529 

Twiss  V.  Massey  308 

Twopenny  v.  Young  26 

Twyne's  Case  443 


Tye  V.  Gwynne 
Tyler  v.  Carlton 
V.  Binney 
Tyly  V.  Morrice 
Tyre  v.  Causey 
Tyson  v.  Cox 


Page 
388 
356 
493 
720 
464 
512 


u. 


Ullock  V.  Reddelein 

446 

Ulmer  z'.  Cunningham 

*32 

Underbill  v.  Gibson 

370 

Union  Bank  i'.  Benham 

343 

V.  Coster's  Ex'rs           502 

V.  Eaton 

160 

V.  Geaiy 

*99,  365 

V.  Hyde 

*233,  238 

V.  Willis 

-206 

Union   Bank  of  Maryland 

V. 

Ridgely 

*118,  504 

Union  Turnpike  Co.  v.  Jenl 

.ins             8 

United  States  v.  Bainbridge  244,  26.3, 

282 

V.  Barker 

-233 

V.  Blakeney 

263 

V.  Boyd 

503 

V.  Buford 

193 

V.  Curry 

*99 

V.  Hillegas 

505 

V.  Jarvis 

58 

V.  Parmele 

48 

V.  Tillotson 

505 

V.  Wyngall 

*50 

V.  Yates 

*99 

U.  S.  Bank  v.  Bank  of  Georgia         220 

V.  Binney 

142 

V.  Carneal 

235 

V.  Smith 

227 

University  of  Vermont  v. 

Buell  37"7, 

378 

Unwin  v.  Wolseley 

*105 

Upham  r.  Prince 

219,493 

Upton  r.  Gray 

53 

Urmston  v.  Newcomen 

247,  248 

Urquhart  v.  Mclvcr 

*80 

Usher  v.  De  Wolfe 

195,  *197 

Uthwatt  V.  Elkins 

*106 

Vacter  i'.  Flack  208 

Vail  V.  Strong  437 

Vale  V.  Bayle  .                        445 

Valentine  v.  Foster  308 

Vallejo  V.  Wheeler  657 

Vallette  I'.  Mason  *217 

Valpy  V.  Gibson  486 

Van  Alen  v.  Vanderpool  *50 


INDEX   TO    CASES    CITED. 


Ixxxiii 


Page 
Van  Alstyne  v.  Van  Slyck  11 
Van  Amiinge  v.  Peabodj'  * 80 
Van  Atta  v.  McKinney  539 
Van  Bracklin  v.  Fonda  471 
Van  Buskirk  v.  Hart.  Fire  Ins.  Co.  188 
V.  Purinton  683 
Van  Casteel  v.  Booker  485,  486 
Van  Doren  v.  Evcritt  430 
Van  Dyck  v.  Van  Beuren  381 
Van  Dyke  v.  Davis  364 
Van  Eps  i'.  Schenectady  417 
Van  Home  v.  Grain  *  200 
Van  Ness  i\  Forrest  *  140 
Van  Orden  v.  Van  Orden  108 
Van  Ostrand  v.  Eeed  472 
Van  Reimsdyk  v.  Kane  *  152 
Van  Rensselaer  v.  Gallup  *  200 
Van  Santvoord  v.  St.  John  689 
Van  Syckell  v.  The  Ewing  648 
Van  Vacthcr  v.  Flack  208 
Van  Valkinburg  v.  Watson  252,  254 
Van  Valcn  v.  Russell  *  176 
Van  Wart  v.  Smith  *  74 
V.  Wooley  *  74 
Van  Winkle  v.  Ketcham  266 
Vanada  ('.  Hopkins  *71 
Vance  v.  Blair  139 
V.  Vance  567 
V.  Ward  222 
V.  Wells  361 
Vanderbilt  v.  Richmond  Turn- 
pike Co.  •  87 
Vanderburgh  v.  Hull  *  136,  - 136 
Vandcrpoel  v.  Van  Allen  432 
Vanderslice  v.  Steam  Tow-Boat 

Superior  646 

Varney  v.  Young  253,  258 

Varnum  v.  Martin  *  98 

Vassar  v.  Camp  407 
Vasse  V.  Smith                         264,  *•  268 

Vaughan  v.  Aldridge  554 

V.  Fuller  225 

V.  rhebe  345 

Vaux  V.  Draper  21 

Veacock  v.  McCall  355 
Veazie  v.  Williams  46,  *  63,  418 
Vent  V.  Osgood                   244,  263J  523 

Vere  v.  Smith  79 

Vernon  v.  Manhattan  Co.  *144 

Vertue  v.  Jewell  477,  482 

Vibbard  v.  Johnson  458 

Vice  V.  Fleming  *157 

Victors  V.  Davies  397 

Viele  V.  Hoag  513 

Vincent  v.  Horlock  *204 

Violett  V.  Patton  6,  *  205 

V.  Powell  *  49,  53 

Virany  v.  Warnc  538 

Vivian  v.  Campion  *  200 

Voguel,  ex  parte  *  180 

Volsain  v.  Cloutier  338 


Voorhees  v.  Earl 
V.  Wait 
Vose  V.  Handy 
Vroom  V.  Van  Home 
Vulliamy  v.  Noble 

W. 

Waddell  v.  Cook 
Waddington  v.  Oliver 
Wade  V.  Grimes 

V.  Simeon 
Wadlington  v.  Gary 
Wadsworth  v.  Allcott 

I'.  Sherman 
Wagman  v.  Hoag 
Wagner  v.  White 
Wailing  v.  Toll 
Wain  V.  Bailey 

?,'.  Warlters 
Wainwright  v.  Webster 
Wait  V.  Baker 

V.  Morris 
Wait,  In  re 
Waitc  V.  Foster 
AVaitman  v.  Miles 

V.  Wakefield 
Ex  jxirie 


Page 
*475 
276 
*197 
*112 
*172 


178 
522 
285 

366,367 
513 
614 
313 
512,  513 
426 
259 
241 
6,  49G 
221 
486 
309 
*177 
219 
-433 
288,  289 
163 
Wakefield  &  Bingley  v.  Brown  21 

Waland  r.  Elkins  *  687,  700 

Walbridge  v.  Harroon  309 

Walden  v.  Sherburne  160 

Walcott  V.  Keith  443 

Waldo  V.  Belcher  -441 

Waldo  Bank  D.  Lumbert  -158 

Walker  v.  15ank  of  Mont.  Co.  236 

V.  Bank  of  the  State  of 

New  York       *  58,  222,  223 
V.  Birch  *  602 

u.  Boiling  *=529 

V.  Davis  213 

V.  Fitts  *  137 

V.  Hatton  425 

V.  Lidc  223 

r.  May  *112 

V.  McCulloch  24,  162 

V.  Sargeant  539 

V.  Scott  *99 

V.  Sherman  432 

V.  Simpson  246,  293,  295 

V.  Smith  *  51 

V.  Walker  355 

V.  York  &  North  Midland 

Railway  Co.  690,  707 

Wallace  v.  Breeds  -441 

V.  Kcnsall  22 

V.  Lewis  -273 

V.  McConncU  227 

V.  McLaren  23 

V.  Morss  265 


Ixxxiv 


INDEX   TO    CASES   CITED. 


Page 

Wallace  V.  Patterson 

*177 

V.  llippon 
V.  Vii^us 

306 
638 

Waller  V.  Craile 

320 

AVallis  y.  Day 

519 

V.  Wallis 

356 

Walls  I'.  Atchcson 

430 

Walpole  V.  Bridges 
Walsh  V.  Adams 

635 
*177,  178 

;;.  Bailie 

503 

V.  Bishop 
V.  Medley 
V.  Wliitcomb 

25 

443 

58,  *62 

Walter  v.  Brewer 

655 

V.  Dewey 
V.  Ross 

424 
-239,  489 

Walton  V.  Dickerson 

539 

V.  Dodson 

493 

V.  Ilanbury 

*37 

Walwyn  v.  St.  Qiiintin 

*233,  236 

Wankford  i'.  Fothcrley 

555 

Wansbrough  v.  Maton 

432 

Waplcs  V.  Hastings 

243 

Warburton  v.  Lytton 

278 

Ward  V.  Allen 

223 

V.  Fryer 

370 

V.  Hunter 

316 

V.  Johus'on 

12,  26,  163 

V.  Shaw 

*441,-441 

Ward's  Case 

*433 

Wardell  v.  Mourillyan 

658,  668 

Warden  y.  Greer 

638 

Wardens  &,c.  of  St.  James^Church 

V.  Moore                   "  208 

Wardens  of  St.  Saviour  v.  Bostock  503 

V.  Smith  *  200 

Warder  v.  Tucker  363 

Wardwell  v.  Haight  *61,  *  144 

Ware  v.  Adams  496 

V.  Gav  607,  695 

V.  Hy'lton  324 

Waring  v.  Favcnck  .         *  54 

V.  Mason  '          468 

V.  Waring  310,  474 

Warmstrey  v.  Tanfleld  193 

Warner  v.  Booge  370 

V.  Cunningham  -  173 

V.  Daniels  462 

V.  McKay  53 

Warren  v.  Allnutt  227 

1-.  Batchelder  -      *  189 

V.  Buckminster  -441 

V.  Saxby  539,  540 

V.  Stearns  378 

V.  Wheeler  195 

V.  Whitney  308,  361 

In  re  *  132, -180 

Warrender  v.  Warrender  298 

Warrick  v.  Warrick  *  65 

Wart  V.  Smith  *  74 

Warwick  i'.  Bruce  261 .  276.  -  376 


Page 

Washburn  v.  Bank   of  Bellows 

Falls  *  174,*  175,  *  177 

V.  Goodman  *  170,   *  173, 

-173 

V.  Hale  286 

V.  Jones  628 

V.  Ramsdell  215 

Wason  V.  Rowe  465 

Waterhouse  v.  Skinner  *449 

Waterman  v.  Barratt  215,  369 

V.  Gilson  530 

V.  Robinson  578 

Waters  v.  Brogden  40 

V.  Howard  554 

y.  Riley  29,  *33 

V.  Simpson  513 

U.Taylor  *  61,*  173 

V.  Travis  417 

Watters  v.  Smith  365 

AVatertown  v.  White  *  196 

Wathen  v.  Sandvs  11 

Watkins  u.  Baird  319 

V.  Birch  442 

V.  Crouch  227 

V.  Halstead  361 

V.  Maule  *  205 

V.  Vince  43,  97 

Watkinson  v.  Bank  of  Pcnn.  *  144 

Watson  V.  A.  N.  &  B.  Railway  Co.    688 

V.  Bennett  117 

V.  Denton  474 

U.King  *61,*62 

V.  McLaren  493 

V.  Murrell  *  99 

V.  Randall  366 

V.  Threlkcld  294,  295,  304 

Ex  parte  *  136 

Way  r.  Speny  308,  309,  361 

Wayde  r.  Carr  702 

Waugh  V.  Carver  142 

V.  Riley  324 

Weatherston  v.  Hawkins   '  *  529 

Weaver  v.  Bachert  546,  553 

Webb  V.  Duckingfield  318 

V.  Fox  578 

V.  Plummer  430 

U.Steele  *196 

hi  re  620 

Webster  v.  CofBn  450 

I'.  De  Tastct  *75 

V.  McGinnis  288 

V.  Spencer  111 

V.  Woodford  311 

Wedlake  f.  Hurley  *191 

Weed  V.  Schenect.  &  Sar.  Railroad 

Co.  *687,  689,  721 

V.  Van  Houten  227 

Weeks  v.  Leighton  253,  *  268.  522 

V.  Tvbald  399 

V.  Wead  443 

Weir  V.  Weir  531 


INBEX  TO  CASES  CITED. 


Ixxxv 


Page 

Welch  V.  Hicks  675 

V.  Mandcville  195 

V.  Whittemore  455 

Welchman  v.  Sturgis  111 

Weldon  v.  Buck  *  239 

Wells  V.  Banister  393 

V.  Horton  -  529 

V.  Padgett  544,  553 

V.  Porter  439 

V.  Steam  Nav.  Co.  646 

V.  Williams  325 

Welsh  V.  Lawrence  700 

V.  Speakman  *  152 

Wennall  v.  Adney  358,  359 

Wentworth  v.  Bullen  373 

V.  Cock  111 

V.  Day  580 

V.  Outhwaite  479,  483 

Werner  I'.  Humphreys  111 

West  V,  Ashdown  512 

V.  Cunningham  460,  467 

V.  Emmons  *  449 

V.  Moore  264 

V.  Newton  445 

V.  Skip  126,  *  177 

V.  Wheeler  293 

Westerlo  i-.  Evertson  *  140 

AVestfall  v.  Parsons  *  36 

Westley  v.  Clarke  28 

Westmeath  v.  Salisbury  300 

V.  Westmeath  298 

Weston  V.  Barton  506,  *  508 

V.  Chamberlain  *  36 

V.  Davis  393 

V.  Wright  *  67 

Westzinthus,  In  re  489,  *  490 

Wetherell  v.  Langston  26 

Wethey  V.  Andrews  -217 

Wetmore  v.  Baker  700 

V.  Wells  544 

Wetzel  V.  Sponsler's  Ex'rs  511 

Weyland  v.  Elkins  *  687 

Wharton  v.  MoKenzie  246 

V.  O'Hara  386 

r.  Walker  *  189,  *  191 

V.  Williamson  236 

Wheatley  v.  Low  373,  583 

Wheaton  v.  East      243,  244,  269,  -  273 

V.  Wilmarth  235 

Wheeler  r.  Collier  418 

V.  Field  226,  229 

V.  Guild  -206,  214 

V.Rice  *168 

U.Russell  *382 

V.  Train  443 

r.  Van  Wart  *170 

V.  Washburn  513 

Whcelock  v.  Wheelwright  608 

Wheelwright  v.  Moore  496 

Whelan  v.  Whelan  357 

Wheldale  v.  Partridge  115 

h 


Page 

Whichcote  v.  La^vi-encc  75 

Whipple  V.  Dow  252 

Whitaker?;.  Brown  -158,  159 

V.  Sumner  453 

V.  Whitaker  285 

Whitbeck  v.  Whitbeck  369 

White  V.  Boulton  691 

V.  Chambers  333 

V.  Chapman  *  85 

V.  Cushing  309 

V.  Dougherty  483 

r.  Demilt     "  373,-376 

V.  Gifford  *  61 

V.  Humphrey  620 

I'.  Lady  Lincoln  *76,  *85 

V.  Murphy  *  144 

V.  Palmer  313 

V.  Parker  115 

V.  Proctor  97 

V.  Reed  -  508 

V.  Skinner  *  54,  *  58 

V.  Trotter  75 

V.  Westport  Cotton  Man.  Co-  41 

r.  Winnisimmet  Co.   645,  *652. 

701 

White's  Case  -627 

Whitefield  v.  Longfellow  320 

V.  McLeod  414,  467 

Whitehead  v.  Anderson  477,  478 

V.  Grcetham  373,  584 

V.  Reddick  *48 

?;.  Tuckett  39,  41,*  50 

V.  Walker  21*5,  *  239 

Whitehouse  v.  Frost  *  490 

^Vhitesell  v.  Crane  722 

Whitesides  v.  Lafterty  -  173 

V.  Thurlkill  648 

Whitestown  v.  Stone  379 

"Whitfield  v.  Le  Despencer        622,  623 

Whiting  V.  Brastow  *  433- 

V.  Earle  258 

Whitingham's  Case  276 

Whitley  v.  Loftus  262,  533 

Whitlock  V.  Duffield  422 

Whitman  v.  Freese  465 

Whitmarsh  i-.  Hall  263,  523 

Whitmore  v.  Gilmour  53 

Whitney  v.  Dutch  270 

V.  Ferris  *  1 52 

V.  Groot  509 

V.  Lee  587 

V.  Meyers  429 

V.  Stearns  355,  356 

V.  Sutton  464 

AVhiton  I'.  Mears  -514 

Whitten  v.  Peacock  *  201 

Whittier  v.  Groffam  225 

Whittingham  v.  Hill  261 

Whittingham's  Case  276 

Whittle  1-.  Skinner  *  198,  362,  370 

Whittlesey  v.  Dean  -  233 


Ixxxvi 


INDEX   TO   CASES   CITED. 


Page 

Whitton  V.  Smith    -     *  156,  160,  *  171 

Whitwell  V.  Johnson  -  233 

Whorcgood  v.  Whoregood  301 

Whywall  v.  Champion  261 

"Wibur  V.  Tobey  324 

Wicks  V.  Chew  342 

Wigg  V.  Shuttleworth  381 

V.  Wigg  *64 

Wiggin  V.  Tudor  22,  162 

Wiggins  ?'.  Hammond  160 

V.  Hathaway  623 

Wigglesworth  v.  Dallison  426,  430 

V.  Steers  311 

Wightman  v.  Chartman  1 1 

I'.  Coates  543,  545 

V.  Wightman  564 

Wigmore  v.  Jay  528 

Wigmore  and  Wells'  Case  1 1 

Wilbour  V.  Turner  *205,  218 

Wilbur  y.  Crane  365 

Wilburn  v.  Larkin  *  48 

Wilby  u.  Phinney  *140 

Wilcox  V.  Howland  320 

V.  Parmelee  688 

V.  Roath  270 

V.  Singletary  *  168 

Wilder  v.  Keeler  -180 

Wildes  V.  Savage  222,  501 

Wilkes  V.  Jacks  225 

V.  Wilkes  298 

Wilkins  v.  Pearce  *  157,  *  169 

Wilkinson  v.  Byers  365 

V.  Candlish  -158 

V.  Coverdale  582 

V.  Hall  30 

V.  Jett  *  136 

V.  Lindo  22 

V.  Lutwidge  220 

V.  Scott  !356 

Wilks  V.  Back  *48,  *  96 

Willan  V.  Willan  422 

Willard  v.  Bridge  621 

V.  Hewlett  270 

V.  Perkins  445 

V.  Stevens  463 

V.  Stone  276,  -376,  545 

Willatts  V.  Kennedy  357,  366 

Willcocks,  ex  parte  120 

Willes  V.  Glover  #63 

Willet  y.  Chambers  161 

Willetz  V.  Green  526 

Willettz  V.  Buffalo  &  Eochester 

R.  R.  Co.  701 

Williams  v.  Alexander  369 
V.  Ash                  342,  343,  347 

v.  Bank  of  U.  S.  228 

V.  Barton  *  80 

V.  Brown  336,  337 

V.  Branson  637 
V.  Chester  &  Holyhead 

Railway  *118 


Page 
Williams  v.  Dydc  308 
V.Everett  *191 
V.  Fowler  304 
V.  Grant  637,  647 
V.  Harrison  263 
V.  Henshaw  139,  *  140 
V.  Holcombe  610 
V.  Hutchinson  257 
V.  Jones  124 
-<;.  Little  *217 
V.  Littlefield  *  84 
V.  Millington  418 
V.  Moor  261 
V.  Moore  245,  274 
V.  Nichols  684 
V.  Prince  297 
V.  Roser  453 
V.  Spafford  468 
V.  Taylor  692,  694 
V.  Waring  227 
V.  Williams  567 
V.  Winans  222 
Ex  parte  -173 
Williams  College  v.  Danforth  379 
Williams's  Ex'rs  v.  Marshall  75 
Williamson  v.  Taylor  *  529 
V.  Wilson  -173 
Willing  V.  Peters  308 
Willings  V.  Consequa  468 
Willion  V.  Berkley  324 
Willis  V.  Bank  of  Eng.  *  66 
V.  Dyson  *  156 
V.  Peckhara  363 
V.  Twambly                 *198, -268 
U.Willis  441,*  449 
Willison  V.  Watkins  428 
Willoughby  v.  Backhouse  675 
V.  Horridge  645,  701 
Willson  V.  Smyth  302 
Wilmhurst  v.  Bowker  479,  486 
Wilmot  V.  Hurd  463 
V.  Smith  541 
Wilmot's  Opinions  277 
Wilson  V.  Anderton  679 
V.  Backhouse  465 
V.  Baptist  Education  So- 
ciety -377 
V.  Barker  47 
V.  Barnett  344 
U.Brett                   *74,  577,  589 
V.  Burr  304,  539 
V.  Clements  222 
V.  Coffin  *  98 
V.  Conine  178 
V.  Coupland  188 
V.  Cui'zon  *123 
V.  Ferguson  459 
V.  Greenwood           *  170,  -  173 
V.  Guyton  580 
V.  Hart  53 
U.Holmes  -212 


INDEX   TO    CASES    CITED. 


Ixxxvii 


Page 

Page 

Wilson  V.  Hooper 

443 

Wood  V.  Ashe 

460,  462 

V.  Hudson 

*112 

V.  Benson 

380 

V.  Knott 

611 

V.  Corl 

230 

V.  Little 

-595,  600 

V.  Curling 

618 

V.  Marsh 

472 

V.  Dudley 

453 

V.  Milner 

*37 

V.  Goodridge 

*96 

V.  Mushett 

299,  300 

V.  Jones 

482 

V.  Poulter 

47 

V.  Mytton 

-  206,  207 

V.  Swabey 

235 

V.  Partridge 

*196,  *197 

V.  Tumman 

*44,  47 

V.  Perrv 

*19G 

V.  Wilson 

97 

V.  Pugh 

238 

V.  Y.  &  M.  Eailroad  Co.       571 

V.  Roach 

482 

V.  York,  Newcastle  &  Ber- 

V. Smith 

464 

wick  Railway  Co 

690 

V.  Warren 

215 

Wilt  V.  Welsh 

264 

and  Fosters  Case 

437 

Wiltshear  v.  Cottrell 

432 

Woodcock  V.  Bennet 

414 

Wiltshire  v.  Sims             *  50, 

*51,  *73 

V.  Nuth 

436 

Winch  V.  Kcely 

195,  *196 

V.  Oxford  &  Worcester 

Winchendon  v.  Hatfield 

326 

R.  R.  Co. 

512 

Winchester  v.  Union  Bank 

111 

Wooderman  v.  Baldock 

442 

Windham  v.  Windham 

421 

Woodes  V.  Dennett 

*58 

Windham  Bank  v.  Norton 

226 

Woodford  i'.  McClenahan 

*52 

Windham's  Case 

18,  421 

AVoodhouse  v.  Meredith 

*75 

Windle  v.  Andrews 

238 

V.  Shepley 

543,  547 

Windsor,  Dean  and  Chapter 

of,  V. 

AVoodin  v.  Burford 

40.  *52,  -*63 

Cover 

117 

V.  Foster 

235 

Wing  V.  Clark 

*449 

Woodleife  v.  Curties 

635 

V.  Hurlburt 

304 

AVoodlife's  Case 

635 

V.  Mill 

394 

Woodman  v.  Eastman 

226 

Winn  V.  Bowles 

193 

V.  Thurston 

231 

V.  Southgate 

522 

Woodruff  V.  Hinman 

380 

Winship  v.  Bank  of  U.  S. 

-158,  160 

V.  Logan 

262,  533 

Winslow  V.  Crocker 

286 

V.  Woodruff' 

567 

V.  Merchants  Ins.  Co.  431,  434 

Woods  V.  Blodgett 

*99 

V.  Tarbox 

453 

r.  Devin 

653,  721 

Winson  v.  McLellan 

453 

V.  Ridley 

208 

Winsor  v.  Griggs 

55 

AVoodward  v.  Cowing 

386 

V.  Lombard            460,  465,  471 

V.  Thacher 

*475 

Winston  v.  Ewing 

*177 

AVookey  v.  Pole 

240 

V.  Westfeldt 

213 

AVooldridge  v.  AYilkins 

126, *  128 

Winstone  v.  Linn 

534 

Wooley  V.  Batte 

*37 

Winter  v.  Branch  Bank 

511 

V.  Clements 

235 

Wintermute  v.  Clarke 

624,  630 

Woolf  V.  Beard 

701 

Winterstoke  Hundred's  Case 

*20 

AA''oolsey  v.  Crawford 

*239 

Wintle  V.  Crowther 

*71 

Wooraley  v.  Lowry 

*217 

Wise  V.  Metcalfe 

425 

Word  V.  Vance 

264 

V.  Wilson 

522,  534 

Wordell  v.  Smith 

443 

Wiseman  v.  Eoper 

364 

Wordsworth  v.  AYillan 

.702 

V.  Vandeput 

476 

AA^ormack  v-  Rogers 

362 

Wiswall  V.  Brinson 

*90 

Worrall  v.  Munn 

47 

Withers  v.  Bircham              * 

14,  15,  30 

AVoorell's  Appeal 

115 

V.  Lyss 

*441 

Worsley  v.  Scarborough 

*65 

Withington  v.  Herring 

41,*  50 

V.  AYood 

'    383 

Witte  V.  Derby  Pishing  Co. 

120 

Wotton  V.  Cooke 

29 

Witter  V.  Richards 

*176 

AVray  v.  Milestone 

139 

WodcU  V.  Coggeshall 

257,  258 

Wren  v.  Kirton 

*  75,  *  76 

Woddrop  I'.  Ward 

-180 

AVrexham  v.  Huddleston 

-173 

Wolcott  V.  Van  Santvoord 

227 

AVright  V.  Bigg 

405 

Wolff  V.  Koppel 

.     79 

V.  Burroughes 

434 

WoUenweber  v.  Ivetterlinus 

225 

V.  Crookes 

47 

Wolmcr's  Case 

*52 

V.  Dekline 

416 

Ixxxviii 


INDEX   TO   CASES   CITED. 


Wright  V.  Gihon 

V.  Lawes 

V.  Morley 

V.  Nutt 

V.  Post 

V.  Proud 

V.  Russell 

V.  Shawcross 

V.  Simpson 

V.  Steele 

V.  Wilcox 

V.  Wright    * 
Wrotesley  v.  Adams 
Wyat  V.  Bulmer 
Wyburd  v.  Stanton 
Wyke  V.  Rogers 
Wyld  V.  Pickford 
Wyman  v.  Hallowell  &  Augusta 

Bank 
Wyndham  v.  Way 
Wynu  V.  Allard  700, 

V.  Carrell 
Wynne  v.  Price 

V.  Eaikes 


Page 
534 
*485 
495 
495 
22 
*75 
495,  507 
234 
495 
270,  271 
87 
103,  193,  306,  542 
421 


215 

*85 
513 
713 

41 
432 
701 
327 
414 
222 


Y. 


Yarborough  v.  Bank  of  England       117 
Yard  w.  Eland  *376 

Yate  V.  Roules  23 


Page 

Yates  V.  Boen 

311 

V.  Bond 

457 

V.  Brown 

*90 

V.  Hoppe 
V.  Pym 
Yeatman  v.  Woods 

58 

465 

*127 

Yong  V.  ReynoU 

York  Buildings  v.  Mackenzie 

495 
75 

York  V.  Grindstone 

629,  630 

Yorke  v.  Grenaugh          629, 

630,-682 

Yorks  V.  Peck 

11,  29 

Young  V.  Adams 

220 

V.  Axtell 

143 

V.  Bryan 
V.  Hunter 

238 
*147 

V.  Keighley 
V.  McChier 

*177 
443 

V.  Smith 

659,  681 

Youqua  i\  Nixon 

385,  446 

Yoxtheimer  v.  Keyser 

308 

Z. 

Zachrison  v.  Ahman 

*80 

Zagury  i'.  Eurnell 

-441 

Zane  v.  Zanc 

364, 367 

Zerbee  v.  Miller 

*532 

Zinck  V.  Wallcer 

444 

Zouch  V.  Parsons 

243 

Zwinger  v.  Sarauda 

240 

PAET  I. 
THE    LAW   OF    CONTRACTS 


CONSIDERED    IN   REFERENCE    TO 


THE   OBLIGATIONS 


ASSUMED   BY 


THE  PARTIES. 


VOL.  I. 


THE  LAW  OF  CONTRACTS. 


PRELIMINARY  CHAPTER. 

SECTION  I. 
OF  THE  EXTENT  AND  SCOPE  OF  THE  LAW  OF  CONTRACTS. 

The  Law  of  Contracts,  in  its  widest  extent,  may  be  re- 
garded as  including  nearly  all  the  law  which  regulates  the 
relations  of  human  life.  Indeed,  it  may  be  looked  upon  as 
the  basis  of  human  society.  All  social  life  presumes  it,  and 
rests  upon  it ;  for  out  of  contracts,  express  or  implied,  declar- 
ed or  understood,  grow  all  rights,  all  duties,  all  obligations, 
and  all  law.  Almost  the  whole  procedure  of  human  life 
implies,  or,  rather,  is,  the  continual  fulfilment  of  contracts. 

Even  those  duties,  or  those  acts  of  kindness  and  affection, 
which  may  seem  most  remote  from  contract  or  compulsion  of 
any  kind,  are  nevertheless  within  the  scope  of  the  obligation 
of  contracts.  The  parental  love  which  provides  for  the  infant 
when,  in  the  beginning  of  its  life,  it  can  do  nothing  for  itself, 
nor  care  for  itself,  would  seem  to  be  so  pure  an  offering  of 
affection,  that  the  idea  of  a  contract  could  in  no  way  belong 
to  it.  But  even  here,  although  these  duties  are  generally  dis- 
charged from  a  feeling  which  borrows  no  strength  from  a 
sense  of  obligation,  there  is  still  such  an  obligation.  It  is 
implied  by  the  cares  of  the  past,  which  have  perpetuated 
society  from  generation  to  generation ;  by  that  absolute 
necessity  which  makes  the  performance  of  these  duties  the 
condition  of  the  preservation  of  human  life  ;  and  by  the  im- 
plied obligation  on  the  part  of  the  unconscious  objects  of  this 

[3] 


4  THE  LAW   OP   CONTRACTS. 

care,  that  when,  by  its  means,  they  shall  have  grown  into 
strength,  and  age  has  brought  weakness  upon  those  to  whom 
they  are  thus  indebted,  they  will  acknowledge  and  repay  the 
debt.  Indeed,  the  law  recognizes  and  enforces  this  obliga- 
tion, to  a  certain  degree,  on  both  sides,  as  will  be  shown 
hereafter. 

It  would  be  easy  to  go  farther,  and  show  that  in  all  the 
relations  of  social  life,  its  good  order  and  prosperity  depend 
upon  the  due  fulfilment  of  the  contracts  which  bind  all  to  all. 
Sometimes  these  contracts  are  deliberately  expressed  with  all 
the  precision  of  law,  and  are  armed  with  all  its  sanctions. 
More  frequently  they  are,  though  still  expressed,  simpler  in 
form  and  more  general  in  language,  and  leave  more  to  the 
intelligence,  the  justice,  and  honesty  of  the  parties.  Far 
more  frequently  they  are  not  expressed  at  all  ;  and  for  their 
definition  and  extent  we  must  look  to  the  common  principles 
which  all  are  supposed  to  understand  and  acknowledge.  In 
this  sense,  contract  is  coordinate  and  commensurate  with  duty  ; 
and  it  is  a  familiar  principle  of  the  law,  of  which  we  shall  have 
much  to  say  hereafter,  and  which  has  a  wide  though  not  a 
universal  application,  that  whatsoever  it  is  certain  a  man 
ought  to  dp,  that  the  law  supposes  him  to  have  promised  to 
do.  "  Implied  contracts,"  says  Blackstone,  (vol.  ii.  p.  443,) 
"are  such  as  reason  and  justice  dictate,  and  which,  therefore, 
the  law  presumes  that  every  man  undertakes  to  perform." 
These  contracts  form  the  web  and  woof  of  actual  life.  If 
they  were  wholly  disregarded,  the  movement  of  society  would 
be  arrested.  And  in  so  far  as  they  are  disregarded,  that 
movement  is  impeded  or  disordered. 

If  all  contracts,  express  or  implied,  were  carried  into  full 
effect,  the  law  would  have  no  office  but  that  of  instructor  or 
adviser.  It  is  because  they  are  not  all  carried  into  effect, 
and  it  is  that  they  may  be  carried  into  effect,  that  the  law 
exercises  a  compulsory  power. 

Hence  is  the  necessity  of  law ;  and  the  well-being  of  society 
depends  upon,  and  may  be  measured  by,  the  degree  in  which 
the  law  construes  and  interprets  all  contracts  wisely  ;  elimi- 
nates from  them  whatever  is  of  fraud,  or  error,  or  otherwise 
wrongful :  and  carries  them  out  into  their  full  and  proper 
[4] 


PRELIMINARY   CHAPTER.  5 

effect  and  execution.  These,  then,  are  the  results  which  the 
law  seeks.  And  it  seeks  these  results  by  means  of  principles ; 
that  is,  by  means  of  truths,  ascertained,  defined,  and  so  ex- 
pressed as  to  be  practical  and  operative.  There  are  many 
of  the  rules  of  law  which  do  not  come  within  this  definition 
of  principles.  They  are  formal  or  technical ;  but  they  are 
subsidiary  to,  and  needed  or  useful  for  the  comprehension, 
application,  and  enforcement  of  principles  ;  and  these  formal 
rules  derive  their  whole  power  and  value  from  the  principles 
which  they  explain,  or  enforce  and  perpetuate. 

It  is  said  that  the  law  seeks  these  results  by  means  of  prin- 
ciples ;  and  these  again,  in  their  most  general  form,  may  be 
said  to  be,  first,  those  rules  of  construction  and  interpretation 
which  have  for  their  object  to  find  in  a  contract  a  meaning 
which  is  honest,  sensible,  and  just,  without  doing  violence  to 
the  expressions  of  the  parties,  or  making  a  new  contract  for 
them ;  and,  secondly,  those  which  discharge  from  a  contract 
whatever  would  bring  upon  it  the  fatal  taint  of  fraud,  or  is 
founded  upon  error  or  accident,  or  would  work  an  injury. 
And  if  these  elements  of  wrong  are  so  far  vital  to  any  con- 
tract, that  when  they  are  removed  it  perishes,  then  the  law 
annuls  or  refuses  to  enforce  that  contract,  unless  a  still  greater 
mischief  would  thereby  be  done. 

Subsidiary  to  these  are  the  rules  and  processes  of  the  law, 
by  means  whereof  a  contract,  which  in  itself  is  good,  and  has 
been  properly  construed,  and  is  free  from  all  removable  ele- 
ments of  wrong,  is  enforced,  or  carried  into  execution. 


SECTION  II. 

DEFINITION   OF   CONTRACTS. 

A  contract,  in  legal  contemplation,  is  an  agreement  be- 
tween two  or  more  parties,  for  the  doing  or  not  doing  of  some 
specified  thing.  («) 

(a)  "A  contract  is  an  agreement  in  Wheat.  197. — "  A  contract  is  an  agree - 

which  a  party  undertakes  to  do,  or  not  nacnt,  upon  sufficient  consideration,  to 

to   do,   a  particular  thing."    Marshall,  do  or  not  to  do  a  particular  thing."     2 

C.    J.,    Sturges    v.    Crowninshield,    4  Blackstone's   Coram.  446. — la  Siden- 

1*  [5] 


6  THE   LAW   OF   CONTRACTS. 

It  has  been  said  that  the  word  agreement  is  derived  from 
the  phrase  "  aggre^atio  mentiumP  (b)  This  is  at  least  doubt- 
ful, and  was  probably  suggested  by  the  wish  to  illustrate  that 
principle  of  the  law  of  contracts  which  makes  an  agreement 
of  minds  of  the  parties  or  the  consent  and  harmony  of  their 
intentions,  essential.  They  must  both  propose  and  mean 
the  same  thing,  and  in  the  same  sense. 

The  word  "  contract "  is  of  comparatively  recent  use,  as 
a  law  term.  Formerly,  courts  and  lawyers  spoke  only  of 
"  obligations,"  (c)  —  meaning  thereby  "  bonds,"  in  which  the 
word  •"  oblige  "  is  commonly  used  as  one  of  the  technical 
and  formal  terms,  —  "covenants,"  and  "agreements,"  which 
last  word  was  used  as  we  now  use  the  word  "  contract."  The 
word  "  promise  "  is  often  used  in  instruments,  and  sometimes 
in  legal  proceedings.  "  Agreement "  is  seldom  applied  to 
specialties ;  "  contract "  is  generally  confined  to  simple  con- 
tracts ;  and  "  promise  "  refers  to  the  engagement  of  a  party, 
without  reference  to  the  reasons  or  considerations  for  it,  or 
the  duties  of  other  parties. 

In  the  above  definition  of  a  contract,  no  mention  is  made 
of  the  consideration.  The  Statute  of  Frauds  requires,  in 
many  cases,  and  for  many  purposes,  that  the  "  agreement " 
shall  be  in  writing,  and  some  note  or  memorandum  thereof  be 
signed  by  the  party  sought  to  be  charged.  Under  this  provi- 
sion, it  has  been  much  controverted  whether  the  word  "  agree- 
ment "  so  far  implies  a  "  consideration,"  that  this  also  must 
be  in  writing.  This  question  will  be  considered  in  a  subse- 
quent part  of  this  work,  (d)  We  have  not  included  the  con- 
ham  anc?Worlington's  case,  2  Leon.  224,  upon  an  assumpsit,  the  same  is  not  re- 
225,  which  was  an  assumpsit,  founded  quisite,  for  it  is  sufiBcient  if  there  be  a 
upon  an  executed  consideration,  Pe-  moving  cause,  or  consideration  prece- 
r/am,  J.,  conceived  that  the  action  did  dent,  for  which  cause  or  consideration 
well  lie,  and  he  said  there  was  a  great  the  promise  was  made." — See  also  the 
difference  between  contracts  and  that  able  article  on  the  definition  and  divi- 
case  : — "For  in  contracts  upon  sale  the  sion  of  contracts,  20  Am.  Jur.  1. 
consideration  and  the  promise,  and  the  (6)  Per  Pollard,  Serjeant,  arguendo  in 
sale,  ought  to  meet  together,  for  a  con-  Reniger  u.  Pogossa,  Plowden,  17. 
tract  is  derived  from  con  and  trahere,  (c)  See  the  Abridgments  of  Brooke, 
which  is  a  drawing  together,  so  as  in  Kolle,  Bacon,  &c. 
contracts  every  thing  which  is  requisite  (cl)  And  see  Wain  v.  Warlters,  5  East, 
ought  to  concur  and  meet  together;  16;  Saunders  i>.  Wakefield,  4  B.  &  Aid. 
namely,  the  consideration,  of  the  one  595  ;  Violett  v.  Patton,  5  Cranch,  142 ; 
side,  and  the  sale  or  the  promise  on  the  Packard  i'.  Richardson,  17  Mass.  122; 
other  side.    But  to  maintain  an  action     Sage  v.  Wilcox,  6  Conn.  81. 

[6] 


PRELIMINARY   CHAPTER.  7 

sideration  in  the  definition  of  the  contract,  because  we  do 
not  regard  it  as,  of  itself,  an  essential  part  thereof.  But  for 
practical  purposes  it  is  made  so  by  some  important  and  very 
influential  rules,  and  we  shall  presently  treat  of  the  consid- 
eration as  one  of  the  elements  of  a  legal  contract. 


SECTION  III. 
CLASSIFICATION   OP   CONTRACTS. 

The  most  general  division  of  contracts  is  into  contracts  by 
specialty  and  simple  contracts. 

Contracts  by  specialty  are  those  which  are  reduced  to 
writing  and  attested  by  a  seal  —  or,  to  use  the  common 
phrase,  contracts  under  seal ;  and  contracts  of  record.  These 
last  are  judgments,  recognizances,  and  statutes  staple.  But 
the  term  "  contracts  by  specialty  "  is  sometimes  confined  to 
contracts  under  seal.  In  the  present  work  we  shall  speak 
chiefly,  but  not  exclusively,  of  contracts  not  under  seal. 

Simple  contracts  are  all  of  those  which  are  not  contracts 
by  specialty.  It  is  not  accurate  in  point  of  language  to  dis- 
tinguish between  verbal  contracts  and  ivritten  contracts  ;  for 
whether  the  words  are  written  or  spoken,  the  contracts  are 
equally  verbal,  or  expressed  in  words.  Nor  is  it  accurate  in 
point  of  law  to  distinguish  between  written  and  parol  con- 
tracts, (e)  For  whether  they  be  written  or  only  spoken,  they 
are,  in  law,  if  not  sealed,  equally  and  only  parol  contracts. 
For  some  purposes,  and  especially  by  the  requirements  of  the 
Statute  of  Frauds,  the  evidence  of  the  contract  must  be  in 
writing ;  and  when  it  is  in  writing,  some  peculiar  rules  of  law 
apply  to  it.  (/.)     But  it  is  a  mistake  to  rest  upon  this  a  legal 


(e)  "  The  law  makes  no  distinction  unless  under  seal.' "    Lord  Abinger,  C. 

in  contracts,  except  between  contracts  B.,  in  Beckham  w.  Drake.  9  M.  &  W.  92. 

which  are,  and  contracts  which  are  not,  (/)  And   independently  of  the  Sta- 

under  seal.    I  recollect  one  of  the  most  tute,  a  familiar  rule  of  judicial  proce- 

learned  judges  who  ever  sat  upon  this  dure  forbids  the  contradiction  by  one 

or  any  other  bench,  being  A'cry  angry  sort  of  evidence  of  a  state  of  things  de- 

when  a  distinction  was  attempted  to  be  clared  to  exist  by  a  higher  sort.    In  this 

taken  between  parol  and  written  con-  sense  it  is  unquestionably  true,  as  Lord 

tracts,  and  saying,  '  They  are  all  parol,  Ellenborough  said  in  Iloare  v.  Graham, 

[7] 


8  THE   LAW   OF    CONTRACTS. 

distinction  between  written  and  oral  contracts;  and  from  this 
mistake  some  confusion  has  arisen,  (g-) 

The  essentials  of  a  legal  contract,  of  which  we  shall  now 
proceed  to  treat,  are,  first,  the  Parties,  for  we  cannot  conceive 
of  a  contract  which  has  no  parties;  secondly,  the  Considera- 
tion, for  this  is,  in  legal  contemplation,  the  cause  of  the  con- 
tract ;  thirdly,  the  Assent  of  the  Parties,  without  which  there 
is  in  law  no  contract ;  and,  fourthly,  the  Subject- Matter  of 
the  Contract,  or  what  the  parties  to  it  propose  as  its  effect. 

3  Camp.  57,  that  to  incorporate  with  a  not  sustained  hy  the  authorities.     See 

written  contract  an  incongruous  parol  Rann  v.  Hughes,  7   T.  R.  350,  note; 

condition  is  contrary  to  first  principles.  Thacher  v.  Dinsraore,  5  Mass.  299,  301 ; 

(g)  Wilmot,  J.,  Pillans  v.  Van  Mierop,  Cook  v.  Bradley,  7  Conn.  57  ;   Union 

3  Burr.  1670-  71,  andParAer,  J.,  Stack-  Turnpike  Co.  v.  Jenkins,  1  Caines's  R. 

pole  r.  Arnold,  11  Mass.  27,  30,  recog-  386. 
nize  three  classes  of  contracts,  but  are 

[8] 


BOOK    I. 

OF  PARTIES  TO  A  CONTRACT. 


CHAPTER   I. 

CLASSIFICATION   OP  PARTIES. 

Parties  may  act  independently  and  severally,  or  jointly, 
or  jointly  and  severally. 

They  may  act  as  representative  of  others,  as 

Agents, 

Factors  or  Brokers, 

Servants, 

Attorneys, 

Trustees, 

Executors  or  Administrators, 

Guardians. 
They  may  act  in  a  collective  capacity,  as 

Corporations, 

Joint-Stock  Companies,  or  as 

Partnerships. 
They  may  be  New  Parties, 

By  Novation, 

By  Assignment, 

By  Indorsement. 
They  may  be  Parties  disabled  in  whole  or  in  part,  as 

Infants, 

Married  Women, 

Bankrupts  or  Insolvents, 


10  THE   LAW   OF   CONTRACTS.  [BOOK  I. 

Non  Compotes  Mentis, 
Drunkards, 
Spendthrifts, 
Seamen, 
Aliens, 
Slaves, 
Outlaws, 
Attainted, 
Excommunicated. 
These  subjects  we  will  proceed  to  consider  separately. 

[10] 


CH.  II.] 


OF  JOINT  PARTIES. 


11 


CHAPTER  11. 


OF  JOINT  PARTIES. 


Sec.  I.  —  Wliether  Parties  are  Joint  or  Several. 

Wherever  an  obligation  is  undertaken  by  two  or  more, 
or  a  right  given  to  two  or  more,  it  is  the  general  presumption 
of  law  that  it  is  a  joint  obligation  or  right.  Words  of  joinder 
are  not  necessary  for  this  purpose ;  but,  on  the  other  hand, 
there  should  be  words  of  severance,  in  order  to  produce  a 
several  responsibility  or  a  several  right.  (A) 

Whether  the  liability  incurred  is  joint,  or  several,  or  such 
that  it  is  either  joint  or  several  at  the  election  of  the  other 
contracting  party,  depends  (the  rule  above  stated  being  kept 
in  view)  upon  the  terms  of  the  contract,  if  they  are  express  ; 
and  where  they  are  not  express,  upon  the  intention  of  the 
parties  as  gathered  from  all  the  circumstances  of  the  case,  (t) 


(A)  Hill  V.  Tucker,  1  Taunt.  7  ;  Hat- 
sail  V.  Griffith,  4  Tyr.  487  ;  King  v. 
Hoare,  13  M.  &  W.  499,  per  Parke,  B. ; 
English  V.  Blundell,  8  C.  &  Pavne,332; 
Yorks  V.  Peck,  14  Barb.  644."— With 
respect  to  instruments  under  seal,  it  is 
said  in  Shep.  Touchstone,  375,  "  If  two, 
three,  or  more,  bind  themselves  in  an 
obligation  thus,  obligamus  nos,  and  say- 
no  more,  the  obligation  is,  and  shall  be 
taken  to  be,  joint  only,  and  not  several." 
And  see  Ehle  v.  Purdy,  6  Wend.  629. 
—  If  an  instrument,  worded  in  the  sin- 
gular, is  executed  by  several,  the  obliga- 
tion is  a  joint  and  several  one  ;  and  those 
who  thus  execute  it  may  be  sued  either 
separately  or  together.  Hemmenway  v. 
Stone,  7  Mass.  58 ;  Van  Alstyne-i'.  Van 
Slyck,  10  Barb.  383;  Powell,  J.,  Sayer 
V.  Chaytor,  1  Lutw.  695,  697  ;  Marsh  v. 
Ward,  Peake,  N.  P.  C.  130;  Clerk  v. 
Blackstock,  Holt,  N.  P.  C.  474  ;  and  see 
Hall  V.  Smith,  1  B.  &  Cress.  407.— 
But  in  Slater  v.  Magraw,  12  G.  & 
Johns.  265,  where  (on  the  sale  of  a 
negro)  the  form  of  the  covenant  was, 
"  I  do  hereby  obligate  to  give  the  said 


William  Slater  a  good  title  for  said  boy 
when  called  on.  W.  M.  F.  Magraw, 
(seal.)  Security:  Geo.  H.  Button, 
(seal,)"  —  a  demurrer  to  a  count  de- 
claring on  this  as  a  joint  and  several 
covenant,  was  sustained,  and  the  court 
held,  that  the  covenant  to  convey  the 
title  was  the  covenant  of  Magraw  alone  ; 
that  the  covenant  of  Dutton  was  a  sev- 
eral covenant  as  surety  that  Magraw 
would  make  the  title  when  called  on  for 
that  purpose  ;  and  that  therefore  an 
action  on  the  covenant  to  convey  could 
not  be  maintained  against  them  jointly. 
See  also  De  Bidder  v.  Schermerhorn, 
10  Barb.  638. 

(?)  Wilde,  J.,  in  Peckham  v.  North 
Parish  in  Haverhill,  16  Pick.  274,  283. 
—  In  the  following  cases  the  liability 
was  held  to  be  joint :  —  Wigmore  and 
Wells's  case,  3  Leon.  206 ;  Wightman 
V.  Chartman,  Gouldsborough,  83  ;  Anon- 
ymous, Moore,  260  ;  Coleman  v.  Sher- 
win,  1  Salk.  137,  1  Show.  79;  Byers  v. 
Dobey,  1  H.  Bl.  236 ;  Exall  v.  Partridge, 
8  T,  R.  308  ;  Wathcn  v.  Sandys,  2 
Camp.  640  ;  Forster  v.  Taylor,  3  Camp. 

[11] 


12 


THE   LAW   OF    CONTRACTS. 


BOOK  I. 


It  may  be  doubted,  however,  whether  any  thing  less  than  ex- 
press words  can  raise  at  once  a  joint  and  a  several  liability* 
Where  the  obligation  is  joint  and  several,  an  ancient  and 
familiar  rule  of  law  forbids  it  to  be  treated  as  several  as  to 
some  of  the  obligors,  and  joint  as  to  the  rest.  The  obligee 
has  the  right  of  choice  between  the  two  methods  of  proceed- 
ing; but  he  must  resort  to  one  or  the  other  exclusively,  and 
cannot  combine  both ;  he  must  proceed  either  severally  against 
each,  or  jointly  against  all.  (j) 


49 ;  Eaden  v.  Titchmarsh,  1  Ad.  &  El, 
691  ;  London  Gas  Light  Co.  v.  NichoUs, 
2  C.  &  P.  365;  Phillips  v.  Bonsall,  2 
Binney,  138  ;  In  the  following  cases  the 
liability  was  held  to  be  several :  —  39  H. 
6,  9,  pi.  15;  Bro.  Abr.  Covenant,  pi. 
27  ;  s.  c.  Viner  Abr.  Covenant,  (M.  a.) 
pi.  1  and  2 ;  s.  c.  Mathewson's  case,  5 
Co.  R.  22 ;  Brown  v.  Doyle,  3  Camp. 
51,  note;  Gibson  v.  Lupton,  9  Bing.  303  ; 
Collins  V.  Prosser,  1  B.  &  Cress.  682  ; 
Hudson  V.  Robinson,  4  M.  &  Sel.  475  ; 
Smith  V.  Pocklington,  1  Cr.  &  Jer.  445  ; 
Fell  V.  Goslin,  11  E.  L.  &  E.  554; 
Harris  v.  Campbell,  4  Dana,  586  ; 
M'Cready  v.  Freedly,  3  Rawle,  251  ; 
Ernst  V.  Bartle,  1  Johns.  Cas.  319; 
Ludlow  V.  McCrea,  1  Wend.  228  ;  Howe 
V.  Handley,  25  Maine,  116.  In  the  fol- 
lowing cases  the  liability  was  held  to  be 
joint  arid  several :  —  Constable  v.  Clo- 
bery,  Pop.  161  ;  Burden  v.  Ferrers,  1 
Sid.  189;  Hankinson  v.  Sandilaus,  Cro. 
Jac.  322  ;  Linn  v.  Crossing,  2  Rol.  Abr. 
148,  Obligation  (G)  ;  Lilly  r.  Hodges, 
1  Stra.  553,  8  Mod.  166;  Robinson  u. 
Walker,  1  Salk.  393,  7  Mod.  153.  The 
words  there  were,  <:onveniunt  pro  se  et 
quolihet  eorum.  But  Holt,  C.  J.,  dissent- 
ing from  the  majority,  thought  this  might 
be  considered  joint  by  reason  of  the  word 
of  agreement  (conveniunt)  being  in  the 
plural,  and  not  being  repeated  in  the 
singular,  so  as  to  express  a  distinct  seve- 
ral promise.  Bolton  v.  Lee,  2  Lev.  56  ; 
Sower  V.  Bradfield,  Cro.  Eliz.  422 ;  May 
V.  "Woodward,  Freeman,  248 ;  Enys  v. 
Donnithorne,  2  Burr.  1190;  Mansell  i'. 
Burredge,  7  T.  R.  352 ;  Bangor  Bank  v. 
Treat,  6  Green  1.  207. 

(/)  Streatfield  v.  Halliday,  3  T.  R. 
782  ;  Cabell  v.  Vaughan,  1  Wms.  Saund. 
291  f.  n.  4  ;  Bangor  Bank  v.  Treat,  6 
Greenl.  207.  —  In  the  case  of  a,  joint  and 
several  debt,  judgment  (without  satis- 
faction) recovered   against  one  of  the 

[12] 


debtors,  is  no  bar  to  an  action  against 
another.  Per  Popham,  C.  J.,  Brown  v. 
Wootton,  Cro.  Jac.  74.  cited  by  Parke, 
B.,  in  King  v.  Hoare,  13  M.  &  W.  504. 

—  But  a  judgment,  though  unsatisfied, 
recovered  against  one  of  two  joint  debt- 
ors, is  a  bar  to  an  action  against  the 
other,  or  to  an  action  against  both. 
Ward  V.  Johnson,  13  Mass.  148  ;  King 
V.  Hoare,  13  M.  &  W.  494.  —  In  Robert- 
son V.  Smith,  18  Johns.  484,  which  was 
the  case  of  a  solvent  dormant  partner, 
discovered  after  judgment  obtained 
against  the  insolvent  ostensible  part- 
ner, Spencer,  J.,  while  holding  the 
plaintiff's  action  to  be  barred,  suggested 
that  the  court,  on  application,  might  be 
induced  to  vacate  the  former  judgment. 

—  But  Collins  V.  Lemasters,  1  Bailey, 
348;  Treasurers  v.  Bates,  2  Bail.  362, 
and  Sheehy  v.  Mandeville,  6  Cranch, 
253,  are  contra.  In  King  v.  Hoare,  13 
M.  &  W.  494,  Sheehy  v.  Mandeville  was 
cited,  but  Parke,  B.,  giving  the  judgment 
of  the  court,  observed,  "  During  the  ar- 
gument, a  decision  of  the  Chief  Justice 
Marshall,  in  the  Supreme  Court  of  the 
United  States,  was  cited  as  being  con- 
trary to  the  conclusion  this  court  has 
come  to  ;  the  case  is  that  of  Sheehy  v. 
Mandeville.  We  need  not  say  we  have 
the  greatest  respect  for  every  decision  of 
that  eminent  judge ;  but  the  reasoning 
attributed  to  him  by  that  report  is  not 
satisfactory  to  us ;  and  we  have  since 
been  furnished  with  a  report  of  a  subse- 
quent case,  in  which  that  authority  was 
cited  and  considered,  and  in  which  the 
Supreme  Judicial  Court  of  Massachu- 
setts decided  that,  in  an  action  against 
two  on  a  joint  note,  a  judgment  against 
one  was  a  bar.  Ward  v.  Johnson,  13 
Tyng's  Rep.  148."  —  Where  one  con- 
tracts in  writing  with  three  persons  to 
give  a  bill  of  sale  of  two  thirds  of  a  ves- 
sel to  two  of  them,  and  of  one  third  to 


en.  II.]  OF  JOINT  PARTIES.  *13 

The  question  whether  the  right  under  a  contract  is  joint 
*  or  otherwise,  enters  more  intimately  into  the  nature  of  the 
contract,  and  therefore  is  of  more  importance  ;  and  it  is  at 
the  same  time  of  greater  difficulty. 

As  a  contract  with  several  persons,  for  the  payment  to  them 
of  a  sum  of  money,  is  a  joint  contract  with  all,  and  all  the 
payees  have  therein  a  joint  interest,  so  that  no  one  can  sue 
alone  for  his  proportion  ;  so,  the  designating  of  the  share  of 
each  will  not  create  such  a  severance  of  interest  as  to  sus- 
tain a  several  action ;  but  all  must  join  in  an  action  for  the 
whole,  (k)  But  if  the  contract  contains  distinct  grants,  or 
promises  of  distinct  sums  to  distinct  payees,  they  would  then 
have  several  interests,  and  certainly  may,  perhaps  must,  bring 
separate  actions,  (l) 

Where  there  are  three  or  more  obligees  or  promisees,  the 
contract,  if  treated  as  joint  by  any,  must  be  treated  as  joint 
by  all.  In  no  case  can  two  sue  together,  leaving  the  other  to 
seek  his  remedy  upon  the  same  contract,  by  himself,  (m) 

If  a  contract  expressly,  and  in  its  very  terms,  joint  and 
several,  be  made  with  divers  persons,  but  for  the  payment  of 

the  other,  and,  in  pursuance  of  the  con-  nantees  several.     Servante  v.  James,  10 

tract,  does  convey  two  thirds ;  this  is  B.   &   Cress.  410.     See  also   Ford  v. 

not  a  severance  of  the  cause  of  action,  Bronaugh,  11  B.  Mon.  14. 
and  a  suit  may  be  maintained  for  the         (m)  Contra,  Bro.  Abr.  Covenant,  49. 

price  against  the  whole.     Marshall  v.  A  man  covenanted  with  twenty,   and 

Smith,  15  Maine,  17.  with  each  of  them,  to  make  certain  sea- 

{Jc)  Lane  v.  Drinkwater,  5  Tyr.  40,  banks  ;  and  by  his  not  doing  it  the  land 

1  C.  M.  &  Kos.599;  Byrne  u.  Fitzhugh,  of  two  was  overflowed  to  their  injury. 

5  Tyr.  54,  1  C.  M.  &  Kos.  613.  Held  by  the  court  that  these  two  could 

(/)  The  master  of  a  vessel  covenanted  have  their  action  of  covenant  without  the 
with  the  several  part  owners  and  their  others.  "  Qucsre,'"  adds  Brooke,  "for 
several  and  respective  e^iecutOTS,  adminis-  it  seems  that  each  should  bring  an  action 
trators,  and  assigns,  to  pay  certain  mo-  by  himself."  The  criticism  of  Brooke  is 
neys  to  them  and  to  their  several  and  undoubtedly  well  founded.  It  may  be 
respective  executors,  &c.,  at  a  certain  questioned,  moreover,  whether  this  case 
banker's,  and  in  such  parts  and  propor-  is  authority  even  to  give  such  a  cove- 
tions  as  were  set  against  their  respective  nant  the  legitimate  attributes  of  a  several 
names.  Upon  this  covenant  an  action  covenant.  The  case  was  cited  in  Slings- 
was  brought  by  the  covenantees  jointly,  by's  case,  (according  to  the  report  of  the 
Held,  on  demurrer  to  the  declaration,  latter  in  2  Leon.  47.)  There,  A.  B.,  and 
that  the  covenant  was  several,  because  C,  being  parties  respectively  to  an  in- 
otherwise  no  effect  would  be  given  to  denturetri-partite,  wherein  A.  covenant- 
the  words  "several  and  respective  exe-  ed  withB.  and  C,  ct  quolihtt  eorum,  that 
cutors,"  &c.,  and  because  the  money  the  land  which  he  had  conveyed  to  B. 
was  to  be  paid  to  the  banker,  not  as  an  was  discharged  of  all  incumbrances,  B. 
entire  sum  for  him  to  make  distribu-  brought  a  several  action  of  covenant; 
tions,  but  in  several  proportions  to  the  and  the  court  held,  notwithstanding  the 
separate  account  of  each  part  owner,  case  from  Brooke,  that  C.  ought  to  have 
thus  making  the  interest  of  the  cove-  been  joined. 

VOL.  I.  2  [13] 


14*  THE   LAW   OF   CONTRACTS.  [BOOK  I. 

a  sum  or  the  accruing  of  some  other  benefit  to  one  of  them 
only,  all  must  join  in  a  suit  upon  that  contract;  (w)  because 
but  one  thing  is  to  be  done,  and  all  have  a  legal  interest  in 
*the  performance  of  that  thing,  although  but  one  party  has  a 
beneficial  interest.  So,  if  there  be  in  one  instrument  a  cove- 
nant with  A.,  and  another  separate  and  distinct  covenant 
with  B.,  and  both  are  for  the  payment  of  a  sum  of  money  to 
A.,  A.  cannot  sue  alone  for  this  sum,  but  B.  must  join,  be- 
cause otherwise  the  payer  might  be  subjected  to  suits  by  both 
parties,  (o)  In  general,  all  contracts,  whether  express,  or  im- 
plied and  resulting  from  the  operation  or  construction  of  law, 
are  joint,  where  the  interest  in  them  of  the  parties  for  whose 
benefit  they  are  created,  is  joint,  and  separate  where  that  in- 
terest is  separate.  But  the  interest  which  is  thus  important 
as  a  criterion,  is  an  interest  in  the  contract,  and  not  in  any 
sum  of  money,  or  other  benefit,  to  be  received  from  it.  It  is 
a  strictly  legal  and  technical  interest,  created  hy  the  contract . 
and  does  not  depend  upon  the  condition  or  state  of  the  par- 
ties aside  from  the  contract,  [p) 

A  covenant  which  is  single  in  its  nature,  or,  which  is  for 
one  and  the  same  cause,  and  so,  in  strict  propriety,  may  be 
called  one  covenant  and  not  a  cluster  of  covenants,  can  never 
he  joint  and  several  in  respect  to  the  covenantees.  In  other 
words,  this  class  of  covenants  does  not  exist  with  respect  to 
the  parties  plaintiff  in  an  action  for  covenant  broken ;  it 
never  lies  in  the  option  of  the  covenantees  to  say  whether 
they  shall  sue  for  the  breach,  jointly  or  severally.  They  must 
sue  jointly  if  they  can.  {q)     The  circumstances  of  each  case, 

( n)  Anderson  v.  Martindale,  1  East,  497.  is  to  be  found  in  the  case  where  the  words 

(o)  Ibid.  of  the  covenant  are  joint  and  several  as 

(p)  Anderson  I'.  Martindale,  1   East,  to  the  covenantees,  while  their  i/j^eresJ  is 

497  ;  English  v.  Blundell,  8  C.  &  Payne,  several.    In  such  a  case  the  law,  perhaps, 

332  ;  Lord  Denman,  Hopkinson  v.  Lee,  allows  the  covenantees,  who,  upon  any 

G  Q.  B.  971,  972.  principle  of  construction,  clearly  may 

(q)  Slingsby's  case,  5  Co.  R.  19  a;  sue  separately,  the  liberty  to  sue  jointly. 

Spencer  ?;.  Durant,  Comb.  115  ;  Eccles-  See  Eccleston   v.   Clipsham,   1   Wms. 

ton  V.  Clipsham,  1  Saund.  1 53  ;  Petrie  v.  Saund.  153  ;  Withers  v.  Bircham,  3  B.  & 

Bury,  3  B.  &  Cress.  353  ;  Scott  v.  God-  Cr.  256  ;  Slingsby's  case,  5  Co.  E.  19  a ; 

vrin,  1  B.  &  Pul.  67,  71;  Gibbs,  C.  J.,  Rolls  ?;.  Yate,  Yelverton,  (Metcalf's  ed.) 

James  v.  Emery,  5  Price,  533;  Foley  v.  177,  note. — On  the  supposition  that  this 

Addenbrooke,  4  Queen's  Bench,   197  ;  exception  exists,  both  rule  and  excep- 

PoUock,  C.  B.,  Parke,  B.,  and  Rolfe,  B.,  tion  might  be  expressed  by  stating  the 

Keightley  u.  Watson,  3  Exch.  721,  723,  proposition   thus: — It  is  not  possible, 

726. — Possibly,  an  exception  to  this  rule  by  any  mere  tvords  of  joinder  and  sever- 

[14] 


CH.  II.] 


OF  JOINT   PARTIES. 


15 


and  the  situation  and  relation  of  the  parties,  and  the  nature 


ance,  to  give  the  covenantees  the  elec- 
tion to  sue  separately  or  together. 

By  what  principles  it  is  to  be  deter- 
mined whether  a  given  contract  is  joint, 
or  joint  and  several,  or  several,  is  a  mat- 
ter in  regard  to  which  the  authorities 
are  in  a  state  of  some  confusion.  A 
doubt,  suggested  by  Mr.  Preston  in  his 
edition  of  the  Touchstone,  and  taken 
up  by  the  Court  of  Exchequer,  has  at 
once  shaken  the  received  opinion,  and 
occasioned  at  least  apparent  conflict  be- 
tween that  court  and  the  Queen's  Bench. 
It  is  evident  that  a  covenant  may  be 
considered  with  reference  either  to  the  co- 
venantors or  covenantees.  If  A.  B.,  and 
C,  covenant  with  X.,Y.,  and  Z.,  two  dis- 
tinct questions  arise.  Shall  X.,  Y.,  and 
Z.,  join,  or  not,  as  plaintiff's  ?  Shall  A., 
B.,  and  C.  be  joined,  or  not,  as  defend- 
ants 1  There  appears  no  reason  for 
doubting  that  the  words  of  joinder  or 
severalty  determine  the  answer  of  the 
second  of  these  questions.  The  cove- 
nant, with  respect  to  the  covenantors, 
may  belong  to  either  one  of  the  three 
classes  of  joint,  several,  and  joint  and 
several,  just  as  the  parties  have  chosen 
to  say  in  the  covenant  that  it  shall. 
The  language  of  severalty  or  joinder, 
and  not  the  interest,  is  then  the  test  of 
the  quality  of  the  covenant  quoad  the 
covenantors.  Enys  v.  Donuithorne,  2 
Burr.  1190.  As  regards  the  joinder  of 
the  covenantees  there  is  nothing  a  priori 
to  prevent  the  existence  of  the  same  three 
classes  to  choose  amongst ;  viz.,  the  class 
where  they  must  sue  jointly,  that  where 
they  must  sue  separately,  and  tiiat  where 
it  is  tlieir  option  to  sue  either  jointly 
or  severally.  But  the  proposition  stated 
above,  if  true,  obviously  removes  the 
third  alternative.  The  covenantees  &iih^x 
must  join  or  must  sever.  Thus  the  in- 
quiry is  narrowed  to  this.  By  wliat  means 
is  it  to  be  determined  in  a  given  case 
■whether  they  must  or  must  not  sue 
jointly  1  And  tiiis  is  the  point,  and,  as 
it  would  seem,  the  only  point  upon  which 
there  is  a  real  conflict  of  authorities.  A 
series  of  cases,  received  without  ques- 
tion by  the  text-writers,  went  upon  the 
principle  tiiat  the  interest  which  the  cove- 
nantees take  by  the  covenant,  quite  irre- 
spective of  words  of  severalty  or  joinder,  is 
in  all  cases  the  decisive  test.  James  v. 
Emery,  5  Price,  529,  8  Taunt.  245 ; 
Withers  v.  Bircham,  3  B.  &  Cress.  254; 


Servante  v.  James,  10  B.  &  Cress.  410  ; 
Lane  v.  Drinkwater,  5  Tyr.  40,  1  C.  ]\I. 
&  Ros.  599.  But  Mr.  Preston  denied  the 
correctness  of  the  rule  as  stated.  "  On 
the  subject  of  joint  and  several  covenants, 
that  eminent  lawyer.  Sir  Vicary  Gibbs, 
assumed  that  covenants  must  necessarily 
be  joint  or  several  according  to  the  in- 
terest. The  language  was,  '  Wherever 
the  interest  of  parties  is  separate,  the 
action  may  be  several,  notwithstanding 
the  terms  of  the  covenant  on  which  it  is 
founded  may  be  joint ;  and  where  the 
interest  is  joint,  the  action  must  be  joint, 
although  the  covenant,  in  language,  pur- 
port to  be  joint  and  several.'  James 
V.  Emery  et  al.  5  Price.  533.  With 
great  deference,  however,  the  correct  rule 
is,  that,  by  express  words  clearly  indica- 
tive of  the  intention,  a  covenant  may  be 
joint,  or  joint  and  several,  to  or  with  the 
covenantors  or  covenantees,  notwith- 
standing the  interests  arc  several.  Salk. 
393;  2  Roll.  Abr.  419,  [possibly  should 
be  149  ;  see  6  Queen's  Bench,  971,  note.] 
So  they  may  be  several,  although  the 
interests  are  joint.  But  the  implication 
or  construction  of  law,  when  the  words 
arc  ambiguous,  or  are  left  to  the  inter- 
pretation of  law,  will  be,  that  the  words 
have  an  import  corresponding  to  the  in- 
terest, so  as  to  be  joint  when  the  interest 
is  joint,  and  several  when  the  interest 
is  several ;  notwithstanding  language 
which,  under  different  circumstances, 
would  give  to  the  covenant  a  different 
eflTect.  Slingsby's  case,  5  Rep.  19;  3 
Ch.  R.  126 ;  5  T.  R.  522  ;  Southcote  v. 
Hoare,  3  Taunt.  89 ;  1  Wood,  537  ;  2 
Burr.  1190  ;"  Shep.Touchstone,  by  Pres- 
ton, 166.  In  Sorsbic  v.  Park,  12  M.  & 
W.  146,  Lord  Abimjer  said,  "  I  think 
the  rule  is  plain  and  certain,  and  requires 
no  authority;  it  is  correctly  stated  by  Mr. 
Preston  in  the  passage  in  Shep.  Touch. 
166,  which  Mr.  Temple  cited.  Where 
the  words  of  a  covenant  are  in  tlieir  na- 
ture ambiguous,  so  that  they  may  be  con- 
strued either  way,  then  the  deed  in  which 
they  are  inserted  supplies  the  mode  of 
their  construction.  If  it  exiiibit  a  seve- 
ral interest  in  the  parties,  you  may  con- 
strue it  as  a  several  covenant,  and  vice 
versa.  But  there  is  no  rule  to  say  that 
words,  which  are  expressly  a  joint  cove- 
nant by  [to]sevcral  persons,  shall  be  con- 
strued as  a  several  covenant  unless  there 
is  something  to  lead  to  that  construc- 
tion." In  this  view  Parke,  B.,  concurred, 

[15] 


16 


THE   LAW   OF   CONTRACTS. 


[book  I. 


of  the  consideration,  are  all  to  be  looked  into,  to  ascertain 


(p.  158.)  "  The  rule  is,  that  a  covenant 
will  be  construed  to  be  joint  or  several 
according;  to  the  interest  of  the  parties 
appearin;^  upon  the  face  of  the  deed,  if 
tlie  words  are  capable  of  that  construc- 
tion ;  not  that  it  will  be  construed  to  be 
several  by  reason  of  several  interests,  if 
it  be  expressly  joint."  —  In  Foley  v.  Ad- 
denbrooke,  4  Queen's  Bench,  197,  (which 
was  decided  a  little  before  Sorsbic  v. 
Park, but  was  not  referred  to  in  that  case, ) 
the  doubt  suggested  by  Preston  was  not 
agitated.  —  Mills  v.  Ladbroke,  7  M.  & 
Gran.  218,  [1844]  was  an  action  brought 
by  a  single  plaintiff.  It  was  contended 
that  the  covenant  onwhich  the  action  was 
founded,  although  several  in  terms  ought 
to  be  treated  as  joint  by  reason  of  the  in- 
terest of  the  covenantees,  who  were  en- 
gaged in  a  partnership  transaction.  Tin- 
dal,  C.  J.,  in  overruling  the  objection,  thus 
adverted  to  the  doctrine  of  the  Court  of 
Exchequer : — "  The  covenant,  therefore, 
entered  into  by  the  defendant,  as  repre- 
senting Kingscote,  with  the  sharehold- 
ers, is,  in  point  of  form,  not  a  covenant 
with  all  the  covenantees  jointly,  but  a 
sevei'al  covenant  with  each.  And  we 
think  this  is  so  clearly  the  case,  that  if 
the  general  rule  as  laid  down  by  Sir  Vi- 
cary  Gibbs,  in  James  v.  Emery,  is  quali- 
fied according  to  the  suggestion  of  Mr. 
Preston,  in  a  note  to  Sheppard's  Touch- 
stone, p.  166,  which  was  adopted  by  the 
Court  of  Exchequer  in  the  case  of  Sors- 
bie  V.  Park,  all  reference  to  the  nature  of 
the  plaintiff's  intei'cst  would  be  unneces- 
sary. But,  assuming  on  the  authority  of 
the  several  cases  referred  to  in  the  argu- 
ment, that  the  unqualified  rule  of  law  is, 
that  the  action  shall  follow  the  nature  of 
the  interest  of  the  covenantees,  without 
regard  to  the  precise  form  of  the  cove- 
nant, so  that  the  action  must  be  joint 
where  the  interest  in  the  subject-matter 
of  the  covenant  is  joint,  and  several 
where  the  interest  of  each  covenantee 
is  a  several  interest,  we  think,  upon 
reference  to  the  deed  itself,  the  plaintiff' 
has  such  several  interest  in  the  subject- 
matter  as  will  enable  him  to  sue  alone 
on  this  several  covenant."  [His  lord- 
ship then  proceeds  to  examine  the 
language  of  the  deed.]  It  was  not 
long  before  Hopkinson  v.  Lee,  6  Q. 
B.  964,  [1845]  afforded  an  oppor- 
tunity for  the  expression  of  the  opi- 
nion of  the  Court  of  Queen's  Bench. 
This  was  an  action  by  a  trustee  upon 
[16] 


articles  of  agreement  under  seal, to  which 
the  defendant  and  T.  were  parties,  of  the 
one  part,  and  the  plaintiff  and  his  cestui 
que  trust,  parties  of  the  other  part.  The 
agreement  recited  a  loan  by  the  plaintiff 
to  E.  of  money  in  the  hands  of  the 
plaintiff,  belonging  to  the  cestui  que  trust ; 
in  consideration  of  which  defendant  and 
T.  covenanted  severally  and  respectively 
"  with  and  to  [the  plaintiff]  his  execu- 
tors, administrators,  and  assigns,  and 
also  as  a  distinct  covenant  with  and  to 
[the  cestui  que  trust^  her  executors,  ad- 
ministrators, and  assigns,"  that  they,  the 
covenantors,  would  pay,  or  cause  to  bo 
paid,  interest  at  5  per  cent,  per  annum 
on  the  money  lent  to  E.  It  was  held 
that  the  cestui  que  trust  ought  to  have 
been  joined  as  a  plaintiff.  Lord  Den- 
man,  in  the  opinion,  referred  with  appro- 
bation to  the  rule  that  words  of  severalty 
do  not  prevent  a  covenant  from  being 
joint  wliere  the  interest  is  joint,  and  said 
that  IMr.  Preston's  exception  was  not 
grounded  on  any  judicial  authority.  His 
lordship  added,  (p.  971)  "We' think 
there  is  no  ground  for  Mr.  Preston's  ap- 
prehension that  words  perfectly  plain 
and  unambiguous,  confining  the  contract 
expressly  to  one  person,  and  excluding 
all  others  from  its  operation,  will  be 
strained  by  the  law  so  as  to  comprehend 
those  whom  it  took  pains  to  exclude. 
The  true  explanation  of  the  rule  is  rather 
this  :  tliat  the  whole  covenant,  taken  to- 
gether, binds  to  both  covenantees,  and 
not  to  either  of  them  alone,  though  sepa- 
rately named  in  some  of  its  words,  by 
reason  of  the  joint  interest  in  the  sub- 
ject-matter, of  the  action,  appearing  on 
the  face  of  the  deed  itself.  Such  being 
the  state  of  the  authorities,  a  special 
case  was  reserved  from  the  assizes  for 
the  Court  of  Exchequer,  where  certain 
persons,  with  whom  a  covenant  had  been 
made,  sued  the  covenantors  upon  it.  The 
deed,  being  fully  set  out,  was  found  to 
make  a  covenant  with  the  plaintiff's,  for 
themselves  and  others ;  and  in  Michael- 
mas term,  184-3,  the  court  held,  in  strict 
conformity  with  all  the  cases,  that  a 
nonsuit  ought  to  be  entered,  because 
those  others  had  not  been  joined  as  plain- 
tiffs in  bringing  the  action,  though  the 
covenant  declared  on  was,  in  its  terms, 
made  with  them  alone.  But  the  plain- 
tiff' here  places  his  whole  reliance  on 
some  dicta  which  fell  from  the  late 
Chief  Baron  and  from  Parke,  B.,  appli- 


CH.  ir.] 


OF  JOINT  PARTIES. 


17 


who  is  really  interested,  and  who  has  sustained  the  damage 


cable,  not  to  that  case,  but  only  to  the 
converse  of  it,  which  were  represented 
as  at  variance  with  the  old  law.  Un- 
luckily, no  reference  was  made  to  An- 
derson V.  Martindale,  as  the  court,  just- 
ly thinking  the  general  rule  too  clear  for 
argument,  stopped  the  learned  counsel 
who  supported  it.  Lord  Abincjer  thought 
the  rule  plain  and  certain,  and  that  it 
required  no  authority :  '  it  is  correctly 
stated  by  Mr.  Preston : '  he  then  cites 
the  rule  with  the  exception.  Parke,  B., 
also  thinks  the  correct  rule  is  laid  down 
by  Gibbs,  C.  J.,  in  James  r.  Emery,  (5 
Price,  53.3,)  with  the  qualification  stated 
by  Mr.  Preston.  These  learned  judges 
could  not  intend  to  overrule  Anderson 
i\  Martindale,  (1  East,  497,)  which  was 
not  brought  before  them ;  nor,  if  they 
did,  could  we  agree  to  be  bound  by  their 
extra-judicially  declaring  such  an  inten- 
tion where  their  decision  itself  pursued 
the  doctrine  of  that  case."  —  In  Brad- 
burne  v.  Botficld,  U  M.  &  W.  559,  572, 
[1845]  the  matter  was  thus  left  by  Baron 
Parke  :  —  "  There  is  no  occasion  to  refer 
to  the  cases  relating  to  the  rule  of  con- 
struction, as  to  covenants  being  joint 
or  several,  according  to  the  interest  of 
the  parties,  which  is  perfectly  well  esta- 
blished. In  the  case  of  Sorsbie  v.  Park, 
(12  M.  &  W.  146,)  Lord  Abinger  and 
myself,  on  referring  to  the  established 
rule,  as  laid  down  by  Lord  Chief  Justice 
Gibbs,  in  the  case  of  James  ?•.  Emer)', 
(2  Moore,  195.)  approved  of  Mr.  Pres- 
ton's qualification  and  explanation  of  it 
in  his  edition  of  the  Touchstone,  166, 
namely,  that,  if  the  language  of  the 
covenant  was  capable  qfbeinrj  so  construed, 
it  was  to  be  taken  to  be  joint  or  several, 
according  to  tiie  interest  of  the  parties 
to  it.  Mr.  Preston  adds,  that  the  general 
rule  proposed  by  Sir  Vicary  Gibbs,  and 
to  be  found  in  several  books,  would 
establish  that  there  was  a  rule  of  law 
too  powerful  to  be  controlled  by  any 
intention,  liowever  express,  and  I  consider 
such  qualification  to  be  perfectly  correct, 
and  at  variance  with  no  decided  case,  as 
it  is  surely  as  competent  for  a  person, 
by  express  joint  words,  strong  enough 
to  make  a  joint  covenant,  to  do  one  tiling 
for  the  benefit  of  one  of  the  covenantees, 
and  another  for  the  benefit  of  another, 
as  it  is  to  make  a  joint  demise  where  it 
is  for  the  benefit  of  one.  I  mention  this, 
because  the  Court  of  Queen's  Bench,  in 
the  case  of  Ilopkinson  v.  Lee,  (14  Law 
2* 


J.  (n.  s.)  Q.  B.  104,)  have  supi)osed 
that  Lord  Abinger  and  myself  had  sanc- 
tioned some  doctrine  at  variance  with 
the  case  of  Anderson  v.  Martindale,  and 
Slingsby's  case,  which  it  was  far  from 
my  intention,  and  I  have  no  doubt  from 
Lord  Abinger s,  to  do ;  it  being  fully 
established,  I  conceive,  by  those  cases, 
that  one  and  the  same  covenant  cannot 
be  made  both  joint  and  several  with  the 
covenantees.  It  may  be  fit  to  observe, 
that  a  part  of  Mr.  Preston's  explanation, 
that  by  express  words  a  covenant  may 
be  joint  and  several  with  the  covenant- 
ors or  covenantees,  notwithstanding  the 
interests  are  several,  is  inaccurately  ex- 
pressed ;  it  is  true  only  of  covenantors, 
and  the  case  cited  from  Salkekl,  p.  393, 
relates  to  them ;  probably  Mr.  Preston 
intended  no  more,  and  I  never  meant  to 
assent  to  the  doctrine  that  the  same  co- 
venant might  be  made,  by  any  words, 
however  strong,  joint  and  several,  where 
the  interest  was  joint;  and  it  is  this  part, 
I  apprehend,  of  Mr.  Preston's  doctrine, 
to  which  the  Court  of  Queen's  Bench 
objects.  I  think  it  right  to  give  this  ex- 
planation, that  it  may  not  be  supposed 
that  there  is  any  difference  on  tliis  point 
with  the  Court  of  Queen's  Bench." —  Af- 
terwards [1849]  came  the  case  of  Keight- 
ley  V.  Watson,  3  Exchequer,  716.  That 
was  an  action  of  covenant  by  one  plain- 
tiff on  a  deed  executed  by  one  Dobbs 
of  the  first  part,  the  plaintift'  of  the 
second  part,  and  the  defendants  of  the 
third  part.  The  deed,  after  reciting  that 
Dobbs  had  agreed  to  purchase  certain 
land  of  the  plaintiff",  which  same  land 
Dobbs  had  agreed  to  sell  to  the  de- 
fendants, stated  that  it  was  thereby  co- 
venanted by  each  party  thereto,  that 
Dobbs  should  sell,  and  the  defendants 
should  purchase,  the  said  land,  at  7,335/.. 
900/.  to  be  paid  upon  the  execution  of 
the  deed,  and  6,435/.  on  the  27th  Novem- 
ber, 1851.  The  deed  then  contained  the 
following  covenant :  — "And  the  defend- 
ants for  themselves,  their  heirs,  &c.,  here- 
by covenant,  with  the  said  plaintiff',  his 
executors,  &c.,  and,  as  a  separate  cove- 
nant, witli  the  said  Dobbs,  his  execu- 
tors, &c.,  that  they,  the  said  defendants, 
and  their  heirs,  &c.,  shall,  on  perform- 
ance of  the  covenant  and  agreement, 
hereinbefore  contained,  on  the  part  of 
the  said  Dobbs,  pay  to  the  said  plain- 
tiff", his  executors,  &c.,  or  to  the  said 
Dobbs.  his  executors,  &c..  in  case  the 
[17] 


18 


THE    LAW   OF   CONTRACTS. 


[book  I. 


arising  from  a  breach  of  the  contract,  and  whether  such  dam- 
age was  joint  or  several,  (r) 


(»•)  In  Windham's  case,  5  Co.  K.  7, 
it  is  stated  that  joint  words  in  a  grant 
are  sometimes  taken  severally: —  1.  In 
respect  of  the  several  interests  of  the 
grantors ;  as  if  two  tenants  in  common, 
or  several  tenants,  join  in  a  grant  of  a 
rent-charge,  j'ct  in  law  this  grant  shall 
be  several,  altiiough  the  words  are  joint. 
2.  In  respect  of  the  several  interests  of 
the  grantees,  &c.     19  H.  6,  63,  64.     A 
warranty  made  to  two  of  certain  lands 
shall  enure  as  several  warranties,  in  re- 
spect that  they  are  severally  seized,  the 
one  of  part  of  the  lands,  and  the  other  of 
the  residue  in  severalty.    6  E.  2  ;  Cove- 
said  plaintift's,  his  executors,  &c.,  shall 
then  have  been  paid  his  or  their  pur- 
chase-money, payable,  &c.,  the  sum  of 
0,433/.,  being  the  remainder  of  the  said 
purchase-money,  on  or  before  the  27tli 
November,    1851.     And  further,    that 
the   said   defendants,   their  heirs,   &c., 
shall   in  the  mean  time,  and  until  the 
whole  of  the  said  sum  of  6,435/.  shall  be 
paid  off,  pay  to  the  said  jilaintiff,  his 
executors,  &c.,  interest  on  so  much  of 
the  purchase-money  as  shall  from  time 
to  time  remain  unpaid,  at  the  rate  of  51. 
per  cent,  per  annum,  from  the  date  of 
these  presents,"  &c.     Held,  that  plain- 
tiff" might  properly  sue  alone  for  inte- 
rest on  the  unpaid  portion  of  the  pur- 
chase-money, the  covenant  being  seve- 
ral.    Pollock,    C.   B.,   said,   "  I  am  of 
opinion  that  in  this  case  the  plaintiff'  is 
entitled  to  tlie  judgment  of  the  Court. 
I  consider  that  the  inquiry  really  is  as  to 
the  true  meaning  of  the  covenant,  at  the 
same  time  bearing  in  mind  the  rule  —  a 
rule  v/liich  I  am  by  no  means  willing  to 
break  in  upon  —  that  the  same  covenant 
cannot  be  treated  as  joint  or  several  at 
tlie  option  of  the  covenantee.  If  a  cove- 
nant be  so  constructed  as  to  be  ambigu- 
ous, that  is,  so  as  to  serve  either  the  one 
view  or  the  other,  then  it  will  be  joint, 
if  the  interest  be  joint,  and  it  will  be 
several,  if  the  interest  be  several.     On 
the  other  hand,  if  it  be  in  its  terms  un- 
mislakeuhhj  joint,  then,  although  the  in- 
terest be  several,  all  the  parties  must  be 
joined  in  the  action.    So,  if  the  covenant 
be  made  clearly  several,  the  action  must 
be  several,  although  the  interest  be  joint. 
It  is  a  question  of  construction.     What 
then,  in  this  case,  did  the  parties  mean  ? 
The  words  of  the  covenant  are,  '  And 
[18] 


nant,  Br.  49.  [But  this  case  does  not 
seem  to  be  law,  See  note  (;/;)  supra.'] 
A  joint  covenant  taken  severally  in  re- 
spect of  the  several  interests  of  the  cove- 
nantees. Vide  10  Eliz.  Dyer,  337,  338, 
[infra  note  (c)]  between  Sir  Anthony 
Cook  and  Watton,  a  good  case.  3.  In 
respect  that  the  grant  cannot  take  efi'ect 
but  at  several  times.  4.  In  respect  of 
the  incapacity  and  impossibility  of  the 
grantees  to  take  jointly.  5.  In  respect 
of  the  cause  of  the  grant,  or  ratione  sub- 
jectce  matericE.  6.  Ne  res  destruatur  et  ut 
evitetur  ahsurdum. 


the  said  E.  Watson,  H.  Watson,  and 
J.  Smith,  for  themselves,  their  heirs,  ex- 
ecutors and  administrators,  hereby  cove- 
nant with  the  said  W.  T.  Keightley,  his 
executors,  administrators,  and  assigns, 
and  as  a  separate  covenant  with  the  said 
A.  A.  Dobbs,  his  executors,  administra- 
tors, and  assigns,  that  they '  will  do  so 
and  so.  If  I  am  to  put  a  construction 
upon  that,  I  should  say  that  it  is  intended 
to  be  a  several  or  separate  covenant.  In 
the  case  of  Hopkinson  v.  Lee  it  seems 
to  have  been  understood  at  one  time  by 
this  Coui"t,  that  there  were  joint  words. 
There  are  certainly  none.  But  the  na- 
ture of  the  interest,  upon  looking  into 
that  particular  case,  may  possibly  justifj' 
that  decision.  The  words  of  this  instru- 
ment are  several,  and  its  terms  disclose 
a  several  interest ;  the  covenant,  there- 
fore, must  be  construed  according  to  the 
words,  as  a  several  covenant ;  and  it  ap- 
pears to  me  that  the  words  used  by  the 
parties  were  intended  to  create  such  a 
covenant.  I  think,  tlierefore,  that  the 
plaintiff  is  entitled  to  sue  alone."  — 
Parke,  B.,  in  the  course  of  an  opinion 
of  considerable  length,  said,  "  the  rule 
that  covenants  are  to  be  construed  ac- 
cording to  the  interests  of  the  parties,  is 
a  rule  of  construction  merely,  and  it 
cannot  be  supposed  that  such  a  rule  was 
ever  laid  down  as  could  prevent  parties, 
whatever  words  they  might  use,  from 
covenanting  in  a  different  manner.  It  is 
impossible  to  say  that  parties  may  not, 
if  they  please,  use  joint  words,  so  as  to 
express  a  joint  covenant,  and  thereby  to 
exclude  a  several  covenant,  and  that, 
because  a  covenant  may  relate  to  several 
interests,  it  is  therefore  necessarily  not 
to  be  construed  as  a  joint  covenant.   If 


CH.  II.] 


OP  JOINT  PARTIES. 


19 


The  nature,  and  especially  the  entireness,  (s)  of  the  consi- 
deration is  of  great  importance  in  determining  whether  the 
promise  be  joint  or  several ;  for  if  it  moves  from  many  per- 

(s)  Chanter  v.  Leese,  5  M.  &  W.  698,  701 ;  1  Roll.  Abr.  31,  pi.  9. 


there  be  words  capable  of  two  construc- 
tions, we  must  look  to  the  interest  of  the 
parties  which  they  intended  to  protect, 
and  construe  the  words  according  to 
that  intei-est.  I  apprehend  that  no  case 
can  be  found  at  variance  with  that  rule, 
unless  Hopkinson  i'.  Leo  may  be  thought 
to  have  a  contrary  aspect.  During  the 
course  of  the  argument  in  Bradburne  v. 
Botfield,  I  certainly  was  under  the  im- 
pression, from  reading  the  case  of  Hop- 
kinson V.  Lee,  that  there  were  in  that 
case  words  capable  of  such  a  construc- 
tion as  to  make  the  covenant  a  joint 
covenant.  If  that  had  been  so,  then  the 
words  subsequently  introduced  would 
not  have  made  it  several,  unless  there 
had  also  been  an  interest  in  respect  of 
which  it  could  be  several,  according  to 
the  rule  referred  to  by  the  Lord  Chief 
Baron,  as  laid  down  in  Slingsby's  case, 
that  it  is  not  competent  to  the  court  to 
hold  the  same  covenant  joint  or  several 
at  the  option  of  the  covenantee."  — 
Rolfe,  B.,  gave  the  following  opinion, 
which  is  cited  at  length  as  containing 
within  a  small  compass  a  clear  and  able 
review  of  the  whole  subject :  — "  I  am 
of  the  same  opinion.  It  seems  to  me 
that  the  question  turns  entirely  upon  the 
rule,  as  stated  by  my  Brother  Parke, 
which  was  distinctly  laid  down  by  this 
court  in  the  cases  cited,  and  in  which  I 
fully  concur.  It  appears  to  me,  that 
Mr.  Preston's  suggestion  was  perfectly 
well  founded,  that  the  rule  in  Slingsby's 
case  was  not  a  rule  of  law,  but  a  mere 
rule  of  construction.  From  that  case  it 
appears,  that,  if  a  covenant  be  cum  quo- 
libet  et  quallhct  eorum,  that  may  be  either 
a  joint  or  several  covenant,  and  it  will 
depend  upon  the  context  whether  it  is  to 
be  taken  as  a  joint  or  several ;  but  it 
cannot  be  both.  The  rule  given  in 
Slingsby's  case  is  not  very  satisfactory 
to  my  mind,  namely,  with  regard  to  tlie 
difficulty  which  arises  as  to  the  proper 
person  to  recover  damages.  If  a  party 
choose  to  enter  into  a  covenant  which 
ci'cates  such  a  difficulty,  I  do  not  see 
what  the  court  has  to  do  with  it.  It  is 
clear  tliat  parties  can  so  contract  by  sepa- 
rate deeds  ;  wliy,  then,  should  they  not 
be  able  equally  to  do  so  by  separate 
covenants  in  the  same  deed  ?     If  they 


so  word  one  covenant  as  to  make  it  a 
joint  and  separate  covenant,  had  it  not 
been  otherwise  decided,  I  confess  I 
should  have  seen  nothing  extraordinary 
in  holding  that  if  they  choose  so  to  con- 
tract as  to  impose  upon  themselves  that 
burden,  and  state  it  to  be  both  joint  .and 
several,  the  court  ought  so  to  construe 
it.  But  Slingsby's  case  has  laid  down 
the  opposite  rule.  I  take  it,  that  from 
that  time  the  rule  has  always  been  — 
whether  distinctly  expressed  or  not,  it  is 
not  necessary  to  consider  —  but  the  rule 
has  been  that  you  are  to  look  and  see 
from  the  context  what  the  parties  meant. 
Applying  that  rule  here,  I  see  no  doubt 
about  the  question.  They  have  said,  in 
terms,  that  it  is  to  be  a  separate  cove- 
nant. According  to  the  other  construc- 
tion, if  Dobbs  had  satisfied  Keightley, 
and  Dobbs  had  died,  Keightley  might 
have  to  sue  for  the  money  coming  to 
Dobbs,  and  vice  versa ;  or,  suppose 
Dobbs  had  not  satisfied  Keightley,  and 
Keightley  had  died,  Dobbs  would  have 
had  to  sue  for  the  money  coming  to 
Keightley's  representatives.  The  par- 
ties have  expressed  themselves  in  words 
showing  it  was  to  be  a  separate  covenant 
with  each,  and  I  think  we  should  so  hold 
it ;  consequently  the  plaintiff  is  entitled 
to  our  judgment."  Piatt,  H.,  concurred 
in  the  judgment.  — From  the  whole  we 
may  gather  that  the  Court  of  Exchequer 
maintain  the  general  principle  that  it  is 
competent  to  the  parties  to  make  the 
contract,  by  express  words,  what  they 
please,  as  well  with  respect  to  the  joinder 
of  p.arties  as  with  respect  to  any  other 
legal  quality  of  the  contract.  The  rule, 
carried  to  its  extent,  would  permit  the 
making  of  a  covenant  joint,  or  several, 
or  joint  and  several,  as  to  the  covenant- 
ors; and  joint,  or  several,  or  joint  and 
several,  as  to  the  covenantees.  But  the 
Court  of  Exchequer  add  that  the  rule 
is  to  be  taken  with  this  qualification, 
namely,  that  one  of  tlie  six  cases  above 
enumerated  is  excluded  by  the  doctrine 
(settled  perhaps,  on  .authority  rather  than 
principle,)  that  no  covenant  can  he  joint 
and  several  as  to  the  covenantees.  Of  course 
it  is  not  to  be  doubted  that  in  this  respect 
all  contr.acts,  whether  under  seal  or  not, 
are  governed  by  the  same  principles. 
[19] 


20*  THE   LAW   OF   CONTRACTS.  [BOOK  I. 

sons  jointly,  the  promise  of  repayment  is  joint ;  (i)  but  if 
*  from  many  persons,  but  from  each  severally,  there  it  is  seve- 
ral, (w)  Where  the  payment  is  in  the  first  place  of  one  sum 
in  solido,  and  this  is  afterwards  to  be  divided  among  the 
payees,  there,  generally,  the  interest  of  the  payees  is  joint ;  {v) 
but  where  the  first  payment  is  in  several  sums  among  the 
several  payees,  there,  generally,  their  interest  is  several,  {lo) 
So  if  a  sum  in  solido  is  advanced  to  one  by  many  persons, 
the  promise  of  repayment  is  a  promise  to  all  jointly;  {x)  but 
if  several  sums  are  advanced  separately  by  each,  there  the 
promise  is  to  each  severally,  (t/)  And  if  the  several  persons 
raise  the  sum  by  separate  and  distinct  contribution  ;  but,  when 
raised,  it  is  put  together  and  advanced  as  one  sum,  there  the 
promise  of  repayment  is  to  all  jointly,  {z)  Both  a  joint 
obligation  or  right,  and  a  several  obligation  or  right,  may  co- 
exist; for  there  may  arise  from  the  same  contract,  one  joint 
duty  to  all,  and  also  several  duties  to  each  of  the  parties,  (a) 

In  analogy  with  the  rule  in  the  case  of  contracts,  it  is  well 
established,  that  there  can  be  no  joint  action  for  an  injury, 
unless  that  injury  be  a  joint  injury  to  the  plaintiffs.  There- 
fore husband  and  wife  cannot  sue  jointly  for  assault  and  bat- 
tery of  them,  or  for  slander  of  them,  {b) 

Whatever  rule  be  adopted  as  the  leading  principle  of  con- 
struction, the  question  whether  the  right  created  by  a  contract 
is  joint  or  several,  must  be  left  in  any  particular  instance  so 
much  to  mere  authority,  that  we  close  the  subject  with  a 
reference  to  the  decisions  collected  in  the  note,  (c) 

(t)  Ivans  V.  Draper,  1  Eoll.  Abr.  31,  C.  123;   Peckham  v.  North  Parish  in 

pi.  9  ;  Winterstoke  Hundred's  case,  Dy-  Haverhill,  16  Pick.  274. 

er,  370,  a.    But  see  Jones  v.  Robinson,  (6)  9  Ed.  4,  51  ;   Cole  v.  Turner,  6 

1  Exch.  454  [infra,  note  (c)].  Mod.  149;  Gazinsky  et  ux.  v.  Colburn, 

(w)  Bell  V.  Chaplain,  Hardres,  321.  decided  March   T.,  1853,  Suffolk  Co. 

[v]  Lane  v.  Drinkwater,  5  Tyr.  40  ;  Mass.  (not  yet  reported.) 

Byrne  v.  Fitzhugh,  5  Tyr.  54.  (c)  It  is  attempted  in  this  note  to  col- 

(w)  Thomas  and ,  Styles,  461.  lect  at  least  the  more  important  cases  in 

\x)  May  V.  May,  1   C.  &  Payne,  44.  -which  the  question  of  the  propriety  of 

Money  advanced  on  the  jomt  credit  of  the  joinder  of  plaintiffs  has  been  passed 

two  parties  may  be  recovered  by  them  upon.     Tliese   cases  fall,  it  is  evident, 

in  a  joint  action  against  the  person  for  within  one  of  four  classes :  —  "Where  a 

whose  benefit  it  was  paid.     Osborne  v.  joint  action  was  held  properly  brought 

Harper,  5  East,  225.  —  where  it  was  held  that  a  several  action 

(y)  Brand  v.  Boulcott,3  B.  &  Pul.  235.  should  have  been  joint— where  a  several 

i.r          -Kir          /-.   o  -n  actiou  was    held    properly  brought  — 

(z)  May  V.  May,  1  C.  &  Payne,  44.  ^^^jj^re  it  was  held  that  a  joint  action 

(a)  Story  v.  Richardson,  6  Bing.  N.  should  have  been  several. — 
[20] 


CH.  II.] 


OF  JOINT  PARTIES. 


21 


SECTION  II. 

OF   SOME  INCIDENTS   OF  JOINDER. 

Parties  are  not  said  to  be  joint  in  law,  merely  because 
they  are  connected  together  in  some  obligation  or  some  in- 
terest which  is  common  to  them  both.  They  must  be  so 
connected  as  to  be  in  a  manner  identified.  They  have  not  se- 
veral and  respective  shares,  which  being  united  make  a  whole  ; 
but  these  together  constitute  one  whole,  which,  whether  it  be 
an  interest  or  an  obligation,  belongs  to  all.  Hence  arises  an 
implied  authority  to  act  for  each  other,  which  is  in  some 
cases  carried  very  far.  Thus,  if  several  plaintiffs  sue  for  a 
joint  demand,  and  the  defendant  pleads  in  bar  an  accord  and 


1.  Where  a  joint  action  was  held  pro- 
peril/  brought. 

Wakefield  &  Bingley  v.  Bkown, 
9  Q.  B.  209.  Covenant.  Bingley,  being 
owner  of  a  term  of  sixty-one  years, 
granted  an  annuity  to  Samuel  W.,  and 
for  securing  payment,  as.signed  the  term 
(wanting  one  day,)  to  Robert  W.  By  in- 
denture, reciting  these  fiicts,  Robert  W., 
at  the  request  of  Samuel  W.  and  of  Bing- 
ley, demised,  and  Bingley  demised  and 
confirmed  tlic  premises  to  Sophia  B.,  at 
a  rent  payable  to  Samuel  W.,  while  the 
premises  remained  subject  to  the  annu- 
ity, and  afterwards  to  Bingley.  Sophia 
B.  covenanted  to  and  with  Samuel  W. 
and  Robert  W.,  and  their  respective  ex- 
ecutors, &c.,  and  also  with  and  to  Bing- 
ley, his  executors,  &c.,  to  pay  the  rent, 
while  the  premises  were  subject  to  the 
annuity,  to  Robert  [sic]  W.,  and  after- 
wards to  Bingley,  and  also  to  make  cer- 
tain repairs.  The  action  was  upon  the 
covenant  to  repair.  Held^  on  demurrer, 
that  Samuel  W.  being  dead,  Robert  W. 
and  Bitigley  could  sue  jointly.  —  Rose 
V.  PouLTOx,  2  B.  &  Ad.  822.  "Covenant. 
Demurrer.  The  covenant  declared  upon 
was,  in  terms,  with  the  plaintiffs  and 
G.,  jointly  and  severally.  G.  was  also 
one  of  the  covenantors,  but  was  dead  at 
the  time  of  the  bringing  of  the  action. 
The  court  held  that  whether  or  not  one 
of  the  covenantees  could,  if  he  had 
chosen,  have  sued  separately,  the  action, 
as  brought,  was  well  maintainable.  ~ 


Pease  v.  Hirst,  10  B.  &  Cress.  122. 
A.,  wishing  to  obtain  credit  with  his 
bankers,  in  1817  prevailed  upon  three 
persons  to  join  him  in  a  promissory 
note,  whereby  they  jointly  and  severally 
promised  to  pay  the  bankers  or  order 
300/.  Upon  two  of  the  partners  retiring 
from  the  banking-house,  a  lialance  was 
struck  between  the  old  and  new  firm, 
and  the  promissory  note  was  delivered 
to  the  new  firm,  but  not  indorsed  to 
them.  Held,  that  the  action  was  well 
brought  in  the  name  of  the  surviving 
members  of  the  old  firm.  —  Kitchin  v. 
Buckley,  T.  Raym.  80;  1  Lev.  109; 
s.  c.  1  Sid.  157.  Nom.  Kitchiu  r. 
Compton.  Covenant  for  repairs  against 
lessee  for  years.  One  Randal  demised 
the  tenement  to  the  defendant,  and  af- 
terwards granted  a  moiety  of  the  rever- 
sion to  Kitchin,  and  afterwards  the 
other  moiety  to  Knight.  Kitchin  and 
Knight  brought  this  action  jointly.  Af- 
ter verdict  for  the  plaintiff's,  it  was 
moved  in  arrest  of  judgment,  that  the 
plaintifl^'s,  being  tenants  in  common, 
ought  not  to  join.  But  the  court  held 
that  the  action  was  properly  brought, 
and  said.  "  this  is  a  personal  action 
merely,  in  which  tenants  in  common 
may  join.''''  —  Vaux  v.  Drapek,  Styles, 
156,  "203;  1  Rolle,  Abr.  31,  pi.  9.  As- 
sumpsit. The  several  cattle  of  the  two 
plaintiffs  having  been  distrained,  de- 
fendant, in  consideration  of  10/.  paid  to 
him  by  the  plaintiffs,  promised  to  pro- 
[21] 


22 


THE   LAW   OF   CONTRACTS. 


[book  I. 


satisfaction  with  one  of  the  plaintiffs,  but  without  any  alle- 
gation that  the  other  plaintiffs  had  authorized  the  accord  and 
satisfaction,  the  plea  is  nevertheless  good,  (d)  For  a  release 
of  a  debt,  or  of  a  claim  to  damages,  by  one  of  many  who 
hold  this  debt  or  claim  jointly,  is  a  full  discharge  of  it,  and 
this  whether  they  hold  this  debt  or  claim  in  their  own  right, 
or  as  executors  or  administrators,  (e)  This  has  been  ex- 
tended to  the  case  where  the  release  is  given  by  one  of  joint 
plaintiffs,  who,  although  a  party  to  the  record,  is  not  a  party 
in  interest,  but  whose  name  the  actual  parties  in  interest 
were  obliged  to  use  with  their  own  in  bringing  the  action.  (/) 
Nevertheless,  if  in  such  a  case  the  party  taking  the  release, 
and  pleading  it  in  bar,  is  aware  that  the  party  giving  it  had 
no  interest  in  the  claim  released,  the  court  would  disregard 
the  release  ;  (g-)  and  upon  such  facts  as  these  the  court  have 
ordered  the  release  to  be  given  up  and  cancelled,  (h) 


(d)  Wallace  et  al.  v.  Kensall,  7  M.  & 
W.  264. 

(e)  Bac.  Abr.  Release,  D.  E.  ;  Ja- 
comb  V.  Harwood,  2  Ves.  Sen.  265 ; 
Murray  v.  Blatchford,  1  Wend.  5S3 ; 
Napier  et  al.  v.  McLeod,  9  Wend.  120; 
Decker  v.  Liviiig.stoii,  15  Johns.  479; 
Pierson  et  al.  v.  Hooker,  3  Johns.  68 ; 
Austin  et  al.  v.  Hall,  13  Johns.  286; 
Bulkley  et  al.  v.  Dayton,  14  Johns.  387  ; 
Bruen  I'.  Marquand,  17  Johns.  58;  Hal- 
cure  the  cattle  to  be  redelivered  to  them. 
Held,  on  motion  in  arrest  of  judgment, 
that  the  joint  action  was  good.  Rolle, 
C.  J.,  said,  "  The  consideration  given 
is  entire,  and  cannot  be  divided,  and 
there  is  no  inconvenience  in  joining  the 
action  in  this  case  ;  but  if  one  had 
brought  the  action  alone,  it  might  have 
been  questionable.  Jennan,  J.,  dissent- 
ed, and  thought  several  promises  should 
be  intended. 

American  Cases. —  Smith  v.  Tall- 
COTT,  21  Wend.  202  In  an  agreement 
under  seal  for  the  sale  of  lands,  hus- 
band, wife,  and  trustee  of  the  wife,  were 
parties  of  the  first  part.  The  trustee 
did  not  execute  tlie  deed — though,  by 
an  indorsement  on  the  back  (under  seal) 
he  bound  himself  to  do  what  should  be 
necessary  on  his  part  to  carry  the  con- 
tract into  effect.  Held,  that  an  action 
against  the  parties  of  the  second  part 
[22] 


sey  et  al.  v.  Fairbanks,  4  Mason,  206; 
Tuckerman  v.  Newhall,  17  Mass.  581 ; 
Wiggin  V.  Tudor,  23  Pick.  444. 

( f)  Wilkinson  et  al.  v.  Lindo,  7  M. 
&  W.  81;  Gibson  v.  Winter,  5  B.'  & 
Ad.  96. 

(fj)  Gram  et  al.  v.  Cadwell,  5  Cow. 
489 ;  Lcgh  v.  Legh,  1  B.  &  P.  447. 

(h)  Barker  et  al.  v.  Richardson,  1  Y. 
&  J.  362. 


properly  brought  in  the  joint  names 
of  husband,  wife,  and  trustee.  —  Pear- 
son V.  Parker,  3  N.  H.  366.  Plain- 
titF^,  being  sureties  for  defendant,  dis- 
charged the  debt,  in  part,  with  money 
raised  upon  the  joint  note  of  plaintiffs, 
and  in  part  with  their  joint  note  given 
directly  for  the  residue.  //eW.  that  their 
action  against  the  principal  debtor  was 
well  brought  jointly. —  Wkigiit  v. 
Post,  3  Conn.  142.  Twenty  persons, 
desirous  to  support  a  public  right  of 
fishery,  entered  into  an  agreement  to 
defend  such  right  through  a  trial  at  law, 
each  promising  to  pay  his  proportion  of 
the  expense  to  such  of  them  as  should 
be  sued  for  occupying  the  fishery. 
Three  of  them  were  sued  jointly,  and, 
after  an  unsuccessful  defence,  each  paid 
from  his  private  funds  one  third  part  of 
the  execution.  Ueld,  that  these  three 
could  maintain  a  joint  action  against  a 


CH.   11.] 


OF   JOINT   PARTIES. 


23 


If  two  or  more  are  jointly  bound,  or  jointly  and  severally 
bound,  and  the  obligee  releases  to  one  of  them,  all  are  dis- 
charged, (i)  Formerly  a  very  strict  and  technical  rule  was 
applied  to  these  cases ;  thus,  where  an  action  was  brought 
against  one  of  three  who  were  bound  jointly  and  severally,  a 
plea  in  bar  that  the  seal  of  one  of  the  others  was  torn  off  was 
held  good.  And  where  three  were  bound  jointly  and  seve- 
rally, and  the  seals  of  two  were  eaten  off  by  rats,  the  court 
inclined  to  think  the  obligation  void  against  all.  (j)  But  if 
the  seals  had  remained  on  until  issue  were  joined,  their  re- 
moval afterwards  would  not  have  avoided  the  bond,  (k) 

Where  a  technical  release,  that  is,  a  release  under  seal,  is 
given  to  one  of  two  joint  debtors,  and  the  other  being  sued, 
pleads  the  joint  indebtedness  and  the  release,  it  is  no  answer 
to  say  that  the  release  was  made  at  the  defendant's  request, 
and  in  consideration  that  he  thereupon  promised  to  remain 
liable  for  the  debt,  and  unaffected  by  the  release ;  for  this 


(/)  Co.  Lit.  232  a ;  Bac.  Abr.  Release, 
G. ;  Vin.  Abr.  Release,  G.  a ;  Dean  v. 
Ncwhall,  8  T.  R.  168;  Hutton  i;.  Eyre,  6 
Taunt,  289 ;  Lacy  v.  Kynaston,  1  Ld. 
Raym,  690;  S.  C.  12  Mod.  551 ;  Clay- 
ton V.  Kynaston,  Salk.  574  ;  Millikeu  v. 

fourth,  to  recover  his  twentieth  part  of 
the  expense  incurred ;  the  joint  liability 
of  the  plaintiffs,  coupled  with  defend- 
ant's promise,  and  not  the  payment  of 
the  money,  being  the  cause  of  action. — 
Haughton  v.  Batlet,  9  Iredell,  337. 
The  two  plaintiffs,  each  out  of  his  own 
stock,  delivered  goods  to  defendant,  to 
be  peddled,  and  took  a  bond,  payable 
to  themselves  jointly,  for  the  faithful 
accounting  therefor.  Held,  that  they 
could  maintain  a  joint  action  upon  the 
bond,  notwithstanding  their  several  in- 
terests. See  also  Doe  d.  Campbell  et 
al.  V.  Hamilton,  13  Q.  B.  977  ;  Beer  v. 
Beer,  9  E.  L.  &  E.,  468;  Magnay  v.  Ed- 
wards, 20  E.  L.  &  E.,  264;  Arden  v. 
Tucker,  4  B.  &  Ad.  815;  Powis  v. 
Smith,  5  B.  &  Aid.  850;  Wallace  v. 
McLaren,  1  M.  &  Ry.  516;  Townsend 
V.  Neale,  2  Camp.  190  ;  Osborne  v. 
Harper,  5  East.  225 ;  Midgley  v.  Love- 
lace, Carth.  289  ;  Yate  v.  Roules,  1 
Bulst.  25 ;  Clement  v.  Henley,  2  Rol. 
Abr.  22,  (F,)  pi.  2  ;  Parker  v.  Gregg,  3 
Foster,  416;  Saunders  v.  Johnson,  Skin- 
ner, 401. 


Brown,  1  Rawle,  391;  Johnson  v.  Collins, 
20  Ala.  435. 

(j)  Bayly  v.  Garford,  March,  125; 
Seaton  v.  Henson,  2  Show.  29. 

(k)  Nichols  V.  Haywood,  Dyer,  59,  pi. 
12, 13;  Michaell  v.  Stockworth,  Owen,  8. 

2.  In  the  following  cases  it  was  held  that 
a  several  action  should  have  been  joint. 

Lucas  v.  Beale,  20  Law  Jour.  (n.  s.) 
C.  P.  134 ;  4  E.  L.  &  E.,  358.  Assump- 
sit. The  plaintiff,  acting  on  behalf  of 
the  members  of  an  orchestra,  to  which 
he  himself  belonged,  signed  a  proposal, 
"  on  behalf  of  the  members  of  the  or- 
chestra," to  continue  their  services,  pro- 
vided the  defendant  would  guarantee 
certain  salary  then  due  to  them.  The 
defendant  accepted  this  proposition,  but 
failed  to  pay  the  salary  due.  The  plain- 
tiff alone  brought  an  action  for  the  whole 
money  due  to  himself  and  the  rest,  and 
stated  the  contract  to  be  with  himself 
and  the  rest.  The  jury  found  that  he 
acted  on  behalf  of  himself  as  well  as  the 
rest.  Held,  that  the  contract  was  joint, 
and  that  he  could  not  recover. — Lock- 
hart  V.  Barnard,  14  M.  &  W.  674. 
Assumpsit.  A  handbill,  relating  to  a 
stolen  parcel,  offered  a  reward  to  "  who- 
ever should  give  such  information  as 
should  lead  to  the  early  apprehension  of 
the  guilty  parties."  The  information 
was  communicated  first  by  plaintifl'  to 
[23] 


24  THE   LAW   OF   CONTRACTS.  [BOOK  I. 

would  be  a  parol  exception  to  a  sealed  instrument.  (/)  This  be- 
ing the  reason,  it  should  follow  that  only  a  release  under  seal 
should  have  this  effect ;  and  the  weight  of  authority  is  cer- 
tainly and  very  greatly  in  favor  of  this  limitation,  (m)  It 
has,  however,  been  held  in  this  country,  that  a  release  which 
is  not  under  seal,  to  one  of  many  joint  debtors,  of  his  share 
or  proportion  of  the  debt,  operates  in  law  as  a  full  discharge  of 
all.  (fi)  But  though  the  word  release  be  used,  even  under  seal, 
yet  if  the  parties,  the  instrument  being  considered  as  a 
whole  and  in  connection  with  all  the  circumstances  of  the 
case  and  the  relations  of  the  parties,  cannot  reasonably  be 
supposed  to  have  intended  a  release,  it  will  be  construed 
as  only  an  agreement  not  to  charge  the  person  or  party  to 
w^hom  the  release  is  given,  and  will  not  be  permitted  to  have 
the  effect  of  a  technical  release ;  (o)  for  a  general  covenant 
not  to  sue  is  not  itself  a  release  of  the  covenantee,  but  is  so 
construed  by  the  law  to  avoid  circuity  of  action  ;  and  a 
covenant  not  to  sue  one  of  many,  who  are  jointly  indebted, 
does  not  discharge  one  who  is  a  joint  debtor  with  the  cove- 
nantee, nor  in  any  way  affect  his  obligation,  (p) 

(l)  Brooks  V.  Stuart,  9  Ad.  &  El.  854  ;  (p)  Lane  ct  al.  v.  Owings,  3  Bibb, 

Parker  I'.  Lawrence,  Hob.  70.  247;    Shed  r.  Pierce,   17   Mass.   628; 

(m)   Shaw   17.  Pratt,   22  Pick,   305;  Couch  v.  Mills,  21  Wend.  424 ;  Rowley 

Walker  v.  McCulloch,  4   Greenl.  421 ;  v.  Stoddard,  7  Johns.  209  ;  McLellan  v. 

Lunt  et  al.  z'.  Stevens.  24  Maine,  534;  Cumberland    Bank,   24    Maine,    566; 

Harrison  v.  Close  et  al.  2  Johns.  448;  Bank  of  Catskill  v.  Messenger  et  al.  9 

Eowleyr.  Stoddard,  7  Johns.  210.  Cow.  37;   Durell  v.  Wendell  et  al.  8 

(n)  Milliken  v.  Brown,  1  Rawle,  391.  New  Hamp.  369;  Bank  of  Chenango  v. 

(o)  Solly  I'.  Porbes,  2  Brod.  &  Bing.  Osgood,  4   Wend,  607  ;    Lancaster  v. 

46;  McAllester  v.  Sprague,  34  Maine,  Harrison,  6  Bing.  731 ;  S.  C.  4  M.  &P. 

296.  561 ;  Dean  v.  Newball,  8  T.  R.  168. 

C.  in  conversation,  afterwards  to  a  con-  ants,  undertook  to  pay  plaintiff  and  B- 

stable  by  plaintiff  and  C.  jointly.    Held,  a  commission  of  5/.  per  cent,  on  the 

that  C.  ought  to  have  joined  in  the  ac-  amount  of  the  net  passage-money  made 

tion  for  the  reward. —  Hopkinson  v.  by  the  ships,  one  half  to   be  paid  to 

Lee,  6  Q.  B.  964.     [For  an  abstract  of  plaintiff,  and  the  other  half  to  B. ;  Lane 

this  case,  and  for  the  comments  made  v.  Drinkwater  being  cited,  held,  that 

upon  it  by  the  Court  of  Exchequer,  see  plaintiff,  suing  without  B.,  should  be 

note  (q)  supra.] — Btene  r.  Fitzhugh,  nonsuited.  —  Hatsall  v.  Griffith,  4 

5  Tyr.   54,   1   Crompt.  Mees.  &  Eos.  Tyr.  487.    A  broker  was  employed  to 

613.    Before  Patteson,  J.,  and  Gurney,  sell  a  ship   belonging   to   three   part- 

B.     The  agreement  of  defendants  was  owners,  two  of  whom   communicated 

that,  in  consideration  of  plaintiff  and  with    him.      To  them   he   paid    their 

B.   using   their   endeavors   to   charter  shares  of  the  proceeds  of  the  sale ;  but, 

ships  and  procure  passengers  on  board  after  admitting  the  third  part-owner's 

of  them,   and  not  engaging  with  any  share  to  be  in  bis  hands,  refused  to  pay 

other  emigrant  broker,  they,  the  defend-  it  to  him  without  the  consent  of  the 
[24] 


CH.   II.] 


OF  JOINT   PARTIES. 


25 


It  may  be  added,  though  not  strictly  within  the  law  of 
contracts,  that  the  effect  of  a  release  of  damages  to  one  of 
two  wrongdoers  is  the  same  as  a  release  of  debt ;  it  is  in 
its  operation  a  satisfaction  of  the  whole  claim  arising  out  of 
the  tort,  and  discharges  all  the  parties,  (q)  And  in  actions 
against  two  or  more  defendants  for  a  joint  tort,  it  has  been 
said  that  damages  should  be  assessed  against  all  jointly  for 
the  largest  amount  which  either  ought  to  pay.  (r)  The  true 
rule,  however,  must  be,  that  the  plaintiff  is  entitled  to  com- 
pensation for  all  the  injury  he  has  received,  and  for  this  there 
should  be  judgment  against  all  who  joined  in  doing  the 
wrong.  Several  damages  should  not  be  assessed  ;  but  if  they 
are,  the  plaintiff  may  elect  which  sum  he  will,  and  remitting 
the  others,  enter  judgment  for  this  sum  against  all.  (s) 

Only  a  voluntary  release  by  the  party  injured,  or  claim- 
ant, has  the  effect  of  discharging  all,  although  given  but  to 
one;  for  if  one  of  two  who  owe  jointly,  either  a  debt  or 
compensation  for  a  wrong,  be  discharged   by  operation  of 


{q)  Brown  u.  Marsh,  7  Verra.  320. 

(r)  Bull.  N.  P.  15 ;  Lowfield  v.  Ban- 
croft, 2  Str.  910;  Onslow  v.  Orchard,  1 
Su>422;  Brown  v.  Allen  et  al.  4  Esp. 
158  ;  Austen  v.  Willward,  Cro.  El.  860; 
Smithson  v.  Garth,  3  Lev.  324. 

other  two.  An  action  of  assumpsit 
having  been  brought  by  the  third  part- 
owner  for  the  share,  held,  that  he  was 
not  entitled  to  recover.  —  Petrie  v. 
Bury,  3  B.  &  Cress.  353.  Covenant ; 
demurrer.  The  covenant  declared  upon 
was  with  the  plaintiff  and  two  others, 
for  the  use  of  a  third  party.  The  de- 
claration averred  that  the  two  other  co- 
venantees had  never  sealed  the  deed. 
Held,  notwithstanding,  that  as  all  might 
sue,  all  jnust  sue,  and  that  the  declara- 
tion was  bad.  —  Southcote  v.  Hoare, 
3  Taunt.  87.  Covenant  upon  an  in- 
denture of  three  parts.  Held,  on  de- 
murrer, that  a  covenant  with  A.  and  B., 
and  with  every  of  them,  is  joint,  though 
A  is  party  of  the  first  part,  and  B. 
party  of  the  second  part,  to  the  deed. — 
Guidon  v.  Robson,  2  Camp.  302. 
Action  by  the  drawer  and  payee  of  a  bill 
of  ex(rhange  against  the  acceptor.  The 
bill  sued  upon  was  drawn  payable  to 
Guidon  &  Hughes,  under  which  firm  the 
VOL.   I.  3 


(s)  Johns  et  al  v.  Dodsworth,  Cro. 
Car.  192;  Walsh  v.  Bishop,  Cro.  Car. 
243  ;  Hevdon's  case,  1 1  Co.  5  ;  Halsev 
et  al.  V.  "Woodruff,  9  Pick.  555 ;  Eod'- 
ney  v.  Strode,  Carth.  19. 


plaintiff  traded.  There  was  no  one  as- 
sociated with  him  as  partner;  but  he 
had  a  clerk  named  Hughes,  and  Lord 
Ellenborough  held  that  such  clerk  should 
have  been  joined. — Slingsby's  case,  5 
Co.  18,  b.;  s.  C.  3  Leon.  160;  s.  c.  2 
Leon.  47  ;  s.  c.  Jenk.  Cent.  262.  R.  B. 
by  deed  covenanted  with  four  persons 
and  their  assigns,  et  ad  et  cum  quolibet 
eorum,  that  he  was  lawfully  and  solely 
seized  of  a  rectory.  Two  of  the  cove- 
nantees brought  covenant  against  R.  B., 
and  held  ill,  because  it  was  a  joint  cove- 
nant, and  the  others  ought  to  have  join- 
ed. The  court  said,  "  When  it  appears 
by  the  declaration,  that  every  of  the 
covenantees  hath,  or  is  to  have,  a  several 
interest  or  estate,  there,  when  the  cove- 
nant is  made  with  the  covenantees,  et 
cum  quolibet  eorum,  these  words,  cum 
quolibet  eorum,  make  the  covenant  several 
in  respect  of  their  several  interests.  As 
if  a  man  by  indenture  demises  to  A. 
black  acre,  to  B.  white  acre,  to  C.  green 


[25] 


26 


THE   LAW   OF   CONTKACTS. 


[book  I. 


law,  without  the  concurrence  or  consent  of  the  party  to  whom 
the  debt  or  compensation  is  due,  he  does  not  hereby  lose  his 
right  to  enforce  this  claim  against  those  not  discharged,  (t) 
But  it  is  said,  that  if  the  discharge  by  operation  of  law  is  at 
the  instance  of  the  plaintiff,  or  be  caused  by  him,  it  then 
operates  as  a  discharge  of  the  other  debtors,  (m) 

The  legal  operation  of  a  release  to  one  of  two  or  more 
joint  debtors  may  be  restrained  by  the  express  terms  of  the 
instrument.  For  if  a  release  containing  such  a  proviso  be 
pleaded  by  the  other  in  bar  to  an  action  against  both,  a  re- 
plication that  the  action  is  brought  against  both,  only  to 
recover  of  the  other,  is  good,  (v) 


{t)  Ward  V.  Johnson  et  al.  13  Mass. 
152. 

(u)  Robertson  v.  Smith,  18  Johns. 
459. 

(v)  Twopenny  v.  Young,  3  B.  &  Cr. 

acre,  and  covenants  with  them,  and  quo- 
libet  eorum,  that  he  is  lawful  owner  of  all 
the  said  acres,  &c.,  in  that  case  in  re- 
spect of  the  said  several  interests,  by  the 
said  words,  et  cum  quolibet  eorum,  the 
covenant  is  m.ide  several ;  but  if  he  de- 
mises to  them  the  acres  jointly,  then 
these  words,  cum  quolibet  eorum,  are  void, 
for  a  man,  by  his  covenant,  (unless  in 
respect  of  several  interests, )  cannot  make 
it  first  joint,  and  then  make  it  several  by 
the  same  or  the  like  words,  cum  quolibet 
eorum  ;  for,  although  sundry  persons 
may  bind  themselves  et  quemlibet  eorum, 
and  so  the  obligation  shall  be  joint  or 
several  at  the  election  of  the  obligee,  yet 
a  man  cannot  bind  himself  to  three,  and 
to  each  of  them,  to  make  it  joint  or  se- 
veral at  the  election  of  several  persons 
for  one  and  the  same  cause,  for  the  court 
would  be  in  doubt  for  which  of  them  to 
give  judgment,  which  the  law  would 
not  sufter,  as  it  is  held  in  3  H.  6,  44,  6." 
See  also  Bradburne  v.  Botfield,  14  M. 
&  W.  559;  Sorsbie  t;.  Park,  12  M.  & 
W.  146;  Lane  v.  Drinkwater,  5  Tyr. 
40,  1  C.  M.  &  Ros.  599;  English  v. 
Blundcll,  8  C.  &  P.  332 ;  Decharms  v. 
Horwood,  10  Bing.  526 ;  Hill  v.  Tucker, 
1  Taunt.  7;  Anderson  v.  INIartindale, 
1  East,  497  :  Spencer  v.  Durant,  Comb. 
115 ;  Thimblethorp  v.  Hardesty,  7  Mod. 
116  ;  Chanter  v.  Leese  et  al.  4  M.  &  W. 
295 ;  Wetherell  v.  Langston,  1  Exch. 
634;   Foley  v.  Addenbrooke,  4  Q.   B. 

[26] 


211  ;  S.  C.  5  D.  &  R.  261 ;  Lancaster  v. 
Harrison,  4  Moore  «Sb  Payne,  561  ;  S.  C 
6  Bing.  726 ;  Solly  et  al.  v.  Forbes  et  al. 
2  Br.  &  Bing.  38 ;  North  v.  Wakefield, 
13  Q.  B.  536. 

197;  Teed  v.  El  worthy,  14  East,  210; 
Scott  V.  Godwin,  1  B.  &  Pull.  67. 

American  Cases. — Sweigakt  v.  Beek, 
8  S.  &  Rawle,  308.  Seven  of  ten  joint 
obligees  brought  an  action  (living  the 
other  obligees)  against  the  obligor. 
Held,  that  it  could  not  be  maintained. 
Semble,  an  action  could  not  have  been 
maintained  by  07ie,  although  brought  in 
respect  of  separate  interest.  —  Dob  v. 
Halset,  16  Johns.  34.  Assumpsit  by 
D.  &  D.,  partners,  against  H.  M.  being 
shown  to  be  a  member  of  the  firm,  held, 
that  he  ought  to  have  been  joined  as 
plaintiff.  —  Sims  v.  Harris,  8  B.  Monr. 
55.  Debt  on  a  penal  bond.  The  bond 
was  executed  by  the  defendant  in  favor 
of  the  plaintiff  and  several  others,  as 
joint  obligees.  The  plaintiff  brought 
the  action  alone  to  recover  the  penalty. 
Held,  that  the  action  was  not  well 
brought.  Alitcr,  if  the  action  had  been 
covenant  on  the  bond  ;  for  in  that  case, 
so  far  as  each  of  the  obligees  in  the 
bond  has  a  separate  interest  in  the  per- 
formance of  its  stipulations,  the  cause 
of  action  is  several,  and  not  joint.  ( See 
Pearce  v.  Hitchcock,  2  Comst.  388.)  — 
Tapscott  v.  Williams,  10  Ohio,  442. 
Where  lands  descended  to  coparceners, 
with  warranty,  and  they  were  evicted 
before  severance,  it  was  held  that  one  of 
them  ceuld  not  sue  alone  on  the  war- 
rantv  for  his  share  of  the  damages. 


CII.  II.] 


OF   JOINT  PARTIES. 


27 


If  an  action  be  brought  against  many,  and  to  this  an  ac- 
cord and  satisfaction  by  one  be  pleaded  in  bar,  it  must  be 
complete,  covering  the  whole  ground,  and  fully  executed.  It 
is  not  enough  if  it  be  in  effect  only  a  settlement  with  one  of 
the  defendants  for  his  share  of  the  damages  ;  nor  would  it 
be  enough  if  it  were  only  this  in  fact,  although  in  form  an 
accord  and  satisfaction  of  the  whole  claim,  (w) 

Joint  trustees  are  not  necessarily  liable  for  each  other,  or 
bound  by  each  other's  acts.  Each  is  liable  for  the  acts  of 
others,  only  so  far  as  he  concurred  in  them,  or  connived  at 
them,  actively  or  negligently.  Each  is,  in  general,  responsi- 
ble only  for  money  which  he  has  himself  received  ;  and  if  he 
signs  a  receipt  with  the  others,  he  may,  at  least  in  equity, 


{iv)  Anderson  v.   Turnpike   Co.   16     Hamp.  136  ;  Eayne  v.  Orton,  Cro.  Eliz. 
Johns.  87  ;  Clark  v.  Dinsmore,  5  New    305  ;  Lynn  et  al".  v.  Bruce,  2  H.  B1.317. 


3.  In  the  following  cases  a  several  action 
was  held  to  he  properly  brought. 

Keightley  v.  Watson,  3  Exch.  716. 
[For  an  abstract  of  this  case  see  note 
(q)  supra.] — Jones  v.  Robinson,  1 
Exch.  454.  The  declaration  stated  that 
the  plaintiff  and  A.  B.  carried  on  busi- 
ness in  copartnership  ;  and  in  consider- 
ation that  they  would  sell  defendant 
their  business,  and  become  trustees  for 
him  in  respect  of  all  debts,  &c.,  due  to 
plaintiff  and  A.  B.  in  respect  thereof, 
defendant  promised  plaintiff"  to  pay  him 
all  the  money  he  had  advanced  in  re- 
spect of  the  copartnership,  and  for  which 
it  M'as  accountable  to  plaintiff,  and  also 
promised  plaintiff  and  A.  B.  that  he 
would  discharge  all  the  debts  due  from 
the  plaintiff  and  A.  B.  as  such  copart- 
ners, and  all  liabilities  to  which  they 
were  subject.  The  declaration  then 
averred  that  plaintiff  and  A.  B.  did  sell 
the  business  to  defendant,  and  became 
trustees  for  him  in  respect  of  all  debts, 
&c.,  due  to  plaintiff  and  A.  B.  in  re- . 
spect  thereof,  and  that,  at  the  time  of 
the  promise,  plaintiff  had  advanced  a 
certain  sum,  for  the  non-payment  of 
which  the  action  was  brought.  On  mo- 
tion in  arrest  of  judgment,  the  defend- 
ant contended  that  the  consideration 
moved  from  the  plaintiff  and  A.  B. 
jointly,  and  therefore,  (as  the  consider- 
ation is  the  essential  part  of  a  contract, 
without  which  the  promise  is  nothing,) 
A.  B.  should  have  been  joined  as  co- 


plaintiff;  but  the  court  held  that  the 
separate  interest  of  the  plaintiff  in  the 
partnership  fund  was  the  consideration 
upon  which  the  promise  sued  upon  in 
this  case  was  founded ;  and,  therefore, 
the  rule  for  which  the  defendant  con- 
tended did  not  apply.  —  Palmer  v. 
Spakshott,  4  M.  &  Gran.  137.  By  an 
agreement,  not  under  seal,  between  de- 
fendant of  the  one  part,  and  plaintiff 
and  F.  of  the  other  part — reciting  that 
plaintiff  and  F.  had  assigned  certain 
property  to  defendant  for  150/.  apiece, 
and  that  it  had  been  agreed  that  defend- 
ant should  retain  50/.  out  of  eaek  150/. — 
the  defendant,  in  consideration  of  the 
two  several  suras  of  50/.  and  50/.  so  re- 
tained, agreed  with  plaintiff  and  F., 
their  executors,  &c.,  to  indemnify  plain- 
tiff and  F.,  and  each  of  them,  their  heirs, 
executors,  &c.,  and  their,  and  each  and 
every  of  their,  estates  and  eft'ects,  from 
the  costs  of  a  certain  action.  Held,  that 
plaintiff  might  maintain  assumpsit  upon 
this  agreement  without  joining  F.  — 
Poole  v.  Hill,  6  M.  &  W.  835.  Co- 
venant. By  articles  of  agreement,  re- 
citing that  the  defendant  had  contracted 
with  J.,  as  the  agent  of  the  plaintiff  and 
the  other  owners  of  the  jjroperty,  for  the 
purchase  of  the  lands  therein  mention- 
ed, the  defendant  covenanted  with  the 
plaintiff,  and  the  several  other  parties 
beneficially  interested,  to  perform  such 
contract  by  paying  the  purchase-money 
ou  a  certain  day,  &c.    Held,  that  this 

[27] 


28 


THE  LAW   OF   CONTRACTS. 


[book  I. 


show  that  he  did  not  receive  the  money,  and  thus  remove  or 
limit  his  liability  ;  but  if  this  be  not  shown,  the  joint  receipt 
is  evidence  against  all.  (x)  A  trustee  may  thus  explain  his 
receipt,  because  he  is  obliged  to  join  with  the  others  in  giving 
one  ;  but  a  co-executor  not  being  under  this  necessity,  it  is 
said  that  he  is  bound  by  the  receipt  he  signs,  (y)  And,  in 
general,  any  co-executor  or  co-trustee  who  does  jointly  with 
the  others  any  act  which  it  is  not  necessary  for  him  to  do,  is 
bound  thereby  to  any  party  who  shall  suffer  therefrom,  [s] 

If  two  or  more  persons  are  bound  jointly  to  pay  a  sum  of 
money,  and  one  of  them  dies,  at  common  law  his  death  not 


(:r)  Fellows  v.  Mitchell  et  al.  1  P. 
Wms.  83,  and  Cox's  note ;  Westley  v. 
Clarke,  1  Eden,  360 ;  Griffin  v.  Macau- 
lay,  7  Grattan,  476. 


(?/)  Sadlerr.  Hobbs,  2  Br.  Ch.  114; 
Chambers  v.  Minchin,  7  Ves.  198. 

(s)  Brice  v.  Stokes,  11  Ves.  319; 
Sadler  v.  Hobbs,  2  Brown,  Ch.  95,  and 
note  to  Am.  edition. 


covenant  was  several,  and  that  the 
plaintiff  might  sue  alone  for  the  non- 
payment of  his  share  of  the  purchase- 
money,  without  joining  the  other  parties 
beneficially  interested. — Place  v.  De- 
LEGAL,  4  Bing.  N.  C.  426.  Assumpsit. 
One  Evans,  as  attorney  for  plaintiffs, 
executors  of  Miers,  having  sold  an  es- 
tate, to  a  share  of  the  proceeds  of  which 
W.  was  entitled  as  legatee,  and  defend- 
ant claiming  W.'s  share  of  such  pro- 
ceeds, under  an  agreement  with  W., 
plaintiffs  paid  the  amount  to  defendant, 
on  receiving  from  him  a  guaranty  in 
these  terms  : — "  Mr.  John  Evans,  and 
also  Messrs.  Place  and  Meabry,  [the 
plaintiffs]  as  the  executors  of  the  will  of 
the  late  Mr.  John  Miers  :  In  considera- 
tion of  your  having  paid,  &c.,  I  hereby 
undertake  to  indemnify  and  save  you 
and  each  of  you  harmless,  &c.  C.  De- 
legal."  Held,  that  plaintiffs  might  sue  on 
this  guaranty  without  joining  Evans. — 
Thacker  v.  Shepherd,  2  Chitty,  652. 
The  plaintiff  and  one  R..  being  in- 
surance brokers  and  partners,  effected  a 
policy  of  insurance  on  the  defendant's 
ship.  The  premium  was  not  paid  to 
the  underwriter  till  after  R.  had  become 
bankrupt,  when  it  was  paid  by  the 
plaintiff  alone  out  of  his  private  pro- 
perty. The  plaintiff  brought  this  action 
alone  to  recover  the  amount  of  the  pre- 
mium thus  paid.  Held,  that  the  action 
was  well  brought.  —  Glossop  v.  Col- 
MA?r,  1  Stark.  25.    Assumpsit.    Plain- 

[28] 


tiff  had  held  out  his  son  as  his  partner, 
and  had  made  out  bills  and  signed  re- 
ceipts in  their  joint  names  ;  but  held  by 
the  court  of  K.  B.  that  he  was  not  pre- 
cluded from  maintaining  his  action  by 
showing  that  his  son  was  not  in  fact  his 
partner. — Davenport  v.  Rackstrow, 
1  C.  &  P.  89.  Hullock,  B.,  S.  P.  — 
Kell  v.  Nainbt,  10  B.  &  Cress.  20,  S. 
P.  "  A  party  with  whom  the  contract 
is  actually  made  may  sue  without  join- 
ing others  with  whom  it  is  apparently 
made."  Parke,  J.  —  Garret  v.  Tay- 
lor, 1  Esp.  Nisi  Prius,  117.  "Three 
persons  had  employed  the  defendant  to 
sell  some  timber  for  them,  in  which 
they  were  jointly  concerned.  Two  of 
them  he  had  paid  their  exact  propor- 
tion, and  they  had  given  him  a  receipt 
in  full  of  all  demands.  The  third  now 
brought  his  action  for  the  remainder, 
being  his  share  ;  and  it  was  objected, 
that  as  this  was  a  joint  employment  by 
three,  one  alone  could  not  bring  his 
action.  But  it  was  ruled  by  Lord 
Mansfield,  that  ivhere  tliere  had  been  a 
severance  as  above  stated,  that  one  alone 
might  sue.  4  G.  3  MS."  —  Kirkman 
V.  Newstead,  1  Esp.  Nisi  Prius,  117. 
"  Action  for  the  use  and  occupation  of 
a  house.  It  appeared  that  the  house 
was  the  property  of  six  tenants  in  com- 
mon, to  all  of  whom,  except  the  plain- 
tiff, the  defendant  had  paid  his  rent ; 
and  this  action  was  for  his  share  of  the 
rent.    It  was  objected  that  one  tenant 


CH.  II.] 


OF  JOINT  PARTIES. 


29 


only  severs  the  joinder,  but  terminates  the  liability  which 
belonged  to  him,  so  that  it  cannot  be  enforced  against  his 
representatives  ;  {a)  but  if  they  were  bound  jointly  and  seve- 
rally, the  death  of  one  has  not  this  effect,  (aa)  If  bound 
jointly,  the  whole  debt  becomes  the  debt  of  the  survivors 
alone,  and  if  they  pay  the  whole,  they  can  have  at  law  no 
contribution  against  the  representatives  of  the  deceased,  be- 
cause this  would  be  an  indirect  revival  of  a  liability  which 
death  has  wholly  terminated. (6)  But  where  the  debt  was  made 
joint  by  fraud  or  error,  equity  will  relieve  by  granting  contri- 
bution ;  as  it  will  if  the  debt  were  for  money  lent  to  both 
and  received  by  both,  so  that  both  actually  participated  in 
the  benefit,  (bh)     If  the  last  survivor  dies,  leaving  the  debt 


(a)  Bac.  Abr.  Obligations,  D.  4  ;  Os- 
borne V.  Crosbern,  1  Sid.  238;  Caldery. 
Rutherford,  3  Br.  &  Bing.  302 ;  Foster 
V.  Hooper,  2  Mass.  572.  Yorks  v.  Peck, 
14  Barb.  644. 


in  common  alone  could  not  bring  this 
action,  but  that  all  ought  to  join ;  but 
Lord  Mansfield  overruled  the  objection, 
and  the  plaintiff  recovered.  Sitt.Westm. 
M.  1776,  MS."  [The  above  two  cases 
from  Espinasse's  Nisi  Prius,  are  of 
doubtful  authority.  See  note  to  Hat- 
sell  V.  Griffith,  4  Tyr.  488,  and  Walford 
on  parties,  466.]  ;  Wotton  ik  Cooke, 
Dyer,  337,  b.  Covenant.  Three  pur- 
chased lands  jointly  in  fee  and  cove- 
nanted each  ivith  the  others  and  their 
heirs,  et  eorum  utrique,  to  convey  to  the 
heirs  of  those  who  happened  to  die  first 
their  respective  third  parts.  Two  of 
the  three  having  died,  the  heir  of  one 
of  them  brought  this  action  against  the 
survivor,  alleging  that  he  had  not  con- 
veyed to  him  according  to  his  covenant. 
It  was  moved,  in  arrest  of  judgment, 
that  the  covenant  was  joint,  and  not 
several,  for  the  word  "  utrique"  in  La- 
tin is  conjunctim,  and  not  separatim ;  sed 
non  allocatur,  and  judgment  was  given 
for  the  plaintiff. 

American  Cases.  —  Hall  v.  Leigh, 
8  Cranch,  50.  riaintiff  and  P.  con- 
signed to  defendant  a  quantity  of  cot- 
ton, of  which  they  were  joint  owners. 
They  gave  defendant  separate  and  dif- 
ferent instructions  for  the  disposition  of 
their  respective  moieties,  each  distinctly 
confining  his  instructions   to  his  own 


{aa)  Towers  v.  Moore,  2  Vern.  99  ; 
May  V.  Woodward,  Freeman,  248. 

{h)  Sec  note  (e)  p.  33,  post. 

{bh)  Waters  v.  Riley,  2  Har.  &  Gill, 
313  ;  Simpson  v.  Vaughan,  2  Atk.  33, 
Yorks  V.  Peck,  14  Barb.  644. 

moiety.  Held,  reversing  judgment  of 
circuit  court,  that  plaintiff  could  main- 
tain an  action  for  the  violation  of  his  in- 
structions, without  joining  P. —  Swett 
V.  PATPacK,  2  Fairfield,  179.  Defend- 
ant conveyed  land  with  warranty  to  A., 
B.,  and  C.  Held,  on  demurrer,  that  a 
several  action  on  the  warranty  was  well 
brought  by  A.  —  Sharp  v.  Conkling, 
16  Vermont,  354.  Covenant.  By  in- 
denture between  the  plaintiff  and  others, 
of  the  first  part,  and  the  defendant  of 
the  other  part,  the  defendant  covenant- 
ed with  the  parties  of  the  first  part  that 
he  would  turn  from  its  natural  cliannel 
a  certain  stream  of  water  which  flowed 
over  the  land  of  the  covenantees ;  and 
whereas,  the  water,  when  diverted, 
would  pass  over  the  land  of  the  plain- 
tiff, that  he  would  so  convey  it  as  not 
to  injure  said  land.  The  plaintiff 
brought  the  action  without  joining  the 
other  covenantees,  and  alleged  breaches 
of  both  covenants.  Held,  tliat  he  might 
recover  on  the  second  covenant,  but  not 
on  the  first.  liedfield,  J.,  said  the  court 
were  willing  to  abide  by  the  rule  that, 
where  the  interest  in  the  subject-matter 
secured  by  the  covenant  is  several,  al- 
though the  terms  of  the  covenant  will 
more  naturally  bear  a  joint  interpreta' 
tion,  yet,  if  they  do  not  exclude  the  in- 
ference of  being  intended  to  be  several, 

[29] 


30 


THE   LAW   OF   CONTRACTS. 


[book  I. 


unpaid,  his  representatives  alone  are  chargeable,  and  have  no 
contribution  against  the  representatives  of  the  other  deceased 
obligor. 

In  most  of  the  United  States,  the  rule  of  the  common  law 
is  changed  by  statute.  The  representatives  of  the  deceased 
continue  to  be  bound  by  his  obligation.  If  the  debtors  were 
jointly  bound,  the  creditor  could  bring  but  one  action  when 
all  were  alive,  and  that  against  all ;  and  then  obtaining  judg- 
ment and  taking  out  execution  against  all,  he  might  levy  it 
on  all  or  either  as  he  chose,  leaving  them  to  adjust  their  pro- 
portions by  contribution.  Now,  it  should  seem  that  after  the 
death  of  a  joint  debtor,  the  creditor  cannot  join  the  survivors 
and  the  representatives  of  the  deceased  in  one  action,  even  if 
the  statute  gives  the  creditor,  where  one  of  many  joint  debt- 
plaintiffs  and  defendant  for  the  sale  of 
the  property  ;  the  other  for  use  and  oc- 
cupation. Held,  that  the  action  could 
not  be  sustained  on  either  count ;  not 
on  the  first,  because  no  joint  contract 
with  all  the  plaintiffs  was  proved ;  not 
on  the  second,  because  no  joint  owner- 
ship in  the  plaintiffs,  and  occupation 
under  them  was  proved:  —  Wilkinson 
V.  Hall,  1  Bing.  N.  C.  713.  Action  of 
debt  against  lessee  for  double  value, 
under  stat.  4  G.  2,  c.  28,  for  holding 
over.  Held,  that  tenants  in  commou 
could  not  maintain  such  action  jointly 
where  there  had  been  no  joint  demise. 
"  If  there  be  no  joint  demise,  there  must 
be  several  actions  for  rent,  for  a  joint 
action  is  not  maintainable  except  upon 
a  joint  demise."  Tindal,  C.J.  —  Ser- 
TANTE  V.  James,  10  B.  &  Cr.  410.  Co- 
venant. The  defendant,  who  was  mas- 
ter of  a  vessel,  covenanted  with  the 
plaintiff  and  others,  part-owners,  and 
their  several  and  respective  executors,  ad- 
ministrators, and  assigns,  to  pay  cer- 
tain moneys  to  them,  and  to  their  and 
every  of  their  several  and  respective  ex- 
ecutors, administrators,  and  assigns,  at  a 
certain  banker's,  anc?  in  such  parts  aiid pro- 
portions as  were  set  against  their  several 
and  respective  names.  The  action  was 
brought  by  all  the  covenantees  jointly. 
Held,  that  the  covenant  was  several,  and 
so  the  action  not  well  brought,  but  each 
covenantee  should  have  brought  a  sepa- 
rate action.  —  Graham  r.  Robertson, 
2  T.  R.  282.  Plaintiffs,  together  with 
A.  &  B.,  being  owners  of  one  ship, 
and  the  defendant  of  another,  a  prize 


they  shall  have  a  several  construction 
put  upon  them.  See  also  Catlin  v.  Bar- 
nard, 1  Aikens  Vt.  9  ;  Harrold  v.  Whita- 
ker.  10  Jur.  1004  ;  Mills  v.  Ladbrooke, 
7  M.  &  Gr.  218  ;  Simpson  r.  Clayton, 
4  Bing.  N.  C.  758  ;  Withers  f.  Bircham, 
3  B.  &  Cr.  254 ;  Johnson  v.  Wilson, 
Willes,  248  ;  Lloyd  v.  Archbold,  2 
Taunt.  324  ;  Story  v-  Richardson,  6 
Bing.  N.  C.'l23  ;  "Owston  v.  Ogle,  13 
East,  538 ;  Lahy  v.  Holland,  8  Gill,  445. 

4.  In  the  following  cases  it  was  held 
that  a  joint  action  shoidd  have  been  seve- 
ral. 

Seaton  v.  Booth,  4  Ad.  &  El.  528. 
Assumpsit.  A.,  B.,  and  C,  being  inte- 
rested in  certain  lands,  but  having  no 
common  legal  interest  in  any  portion  of 
them,  agreed  together,  according  to  their 
respective  interests,  to  put  them  up  for 
sale,  and  the  lands  were  so  put  up,  un- 
der the  direction  of  their  agent,  in  lots. 
Each  lot  was  described  in  a  separate 
paper,  containing  the  conditions  of 
sale,  in  which  it  was  stipulated,  among 
other  things,  that  if  the  purchaser  should 
be  let  into  the  premises  before  payment 
of  the  purchase-money,  he  should  be 
considered  tenant  at  will  to  the  vendors, 
and  pay  interest  at  the  rate  of  4  per 
cent,  on  the  amount  of  purchase-money 
as  and  for  rent.  Defendant  bought 
four  of  the  lots,  and  was  let  into  pos- 
session, and  held  for  several  years  with- 
out paying  the  purchase-money  ;  where- 
upon the  vendors  brought  their  joint 
action  against  him,  to  recover  rent. 
Their  declaration  contained  two  counts : 
one  upon  the    contract    between    the 

[30] 


CH.  II.] 


OF  JOINT   PARTIES. 


31 


ors  dies,  the  same  remedy  by  action  as  if  the  contract  were 
joint  and  several;  inasmuch  as  an  executor  cannot  be  joined 
with  the  survivors  in  an  action  upon  a  contract  which  was 
originally  joint  and  several,  because  one  would  be  charged 
de  bonis  iestatoris,  and  the  other  de  bonis  propriis,  which  can- 
not be ;  {cc)  but  the  creditor  rnay  elect  which  to  sue.  (^dd) 
He  may  sue  either,  or  both,  in  distinct  actions,  and  may  levy 
his  executions  upon  either  or  both.  But  he  can  get,  in  the 
whole,  only  the  amount  of  his  debt ;  and  the  survivors  and  the 
representatives  of  the  deceased,  or  the  representatives  of  all 
the  debtors,  if  all  are  deceased,  have  against  each  other  a 
claim  for  contribution,  if  either  pay  more  than  a  due  propor- 
tion, [ee) 

If  one  or  more  of  several  joint  obligees  die,  the  right  of 
action  is  solely  in  the  survivors,  and  if  all  die,  the  action 
must  be  brought  by  the  representatives  of  the  last  sur'vivor.(/) 
But  if  the  right  under  the  contract  be  several,  the  represent- 
atives of  the  deceased  party  may  sue,  although  the  other 
obligees  are  living,  (g-) 


{cc)  Kemp  v.  Andrews,  Carth.  171  ; 
Hall  V.  Huffam,  2  Lev.  228. 

(dd)  Mayv.  Woodward,  Freem.  248; 
Enys  V.  Donnithorne,  2  Burr.  1190. 

(ee)  Peaslee  v.  Breed,  10  New  Hamp. 
489  ■■,  Bachelder  v.  Eiske,  17  Mass.  464. 

was  taken,  condemned,  and  shared  by 
agreement  between  them ;  afterwards 
the  sentence  of  condemnation  was  re- 
versed, and  restitution  awarded,  with 
costs,  which  was  paid  solely  by  the 
plahitiffs,  A.  and  B.  having  in  the  mean 
time  become  bankrupts.  An  action 
could  not  be  brought  by  the  plaintiffs 
alone  for  a  moiety  of  the  restitution 
money  and  costs,  because  it  was  either 
a  partnership  transaction,  when  A.  and 
B.  ought  to  be  joined ;  or  not,  when  se- 
parate actions  should  be  brought  by 
each  of  the  persons  paying.  See  also 
Smith  V.  Hunt,  2  Chitty,  142  ;  Brandon 
V.  Hubbard,  2  Br.  &  Bing.  1 1  ;  Tippet  v. 
Hawkev,  3  Mod.  263;  Brand  v.  Boul- 
cott,  3  Bos.  &  Pul.'235  ;  Kelby  v.  Steel, 
5  Esp. 194. 

American  Cases.  —  Boggs  v.  Curtin, 
10  S.  &  Rawle,  211.  Two  firms,  C.  & 
B.  and  J.  &  D.,  having  become  sureties 
for  A.,  gave  their  joint  and  several  note 


(/)  Kolls  V.  Yate,  Yelv.  177  ;  An- 
derson V.  Martindale,  1  East,  497  ;  Sto- 
well's  Admr.  v.  Drake,  3  Zabriskie,  310. 

(g)  Shaw  v.  Sherwood,  Cro.  Eliz. 
729. 


for  the  debt  of  A.  Held,  that  the  two 
firms,  on  payment  by  them  of  the  note, 
could  not  maintain  a  joint  action  against 
A.,  it  not  appearing  that  the  payment 
was  made  out  of  a.  joint  fund  of  the  two 
firms.  "  The  action  of  "assumpsit  must 
be  joint  or  several,  accordingly  as  the 
promise  on  which  it  is  founded  is  joint 
or  several.  Where  the  promise  is  ex- 
press,^  there  can  be  little  difficulty  in  de- 
tei-mining  to  which  class  it  belongs,  as 
its  nature  necessarily  appears  on  the 
face  of  the  contract  itself;  and  if  it  be 
joint,  all  to  whom  it  is  made  must,  or 
at  least  may  sue  on  it  jointly.  .  .  .  But 
an  implied  promise,  being  altogether 
ideal,  and  raised  out  of  the  consideration 
only  by  intendment  of  law,  follows  the 
nature  of  the  consideration  ;  and  as 
that  is  joint  or  several,  so  will  the  pro- 
mise be."  Gibson,  J.  —  Cartiirae  v. 
Brown,  3  Leigh,  98.  C.  covenanted 
with  B.  &  J.  that  he  would  pay  B.  and 


[31] 


32* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


SECTION  III. 


OF   CONTRIBUTION. 


Where  two  or  more  persons  are  jointly,  or  jointly  and  seve- 
rally, bound  to  pay  a  sum  of  money,  and  one  or  more  of  them 
*pay  the  whole,  or  more  than  his  or  their  share,  and  thereby 
relieve  the  others  so  far  from  their  liability,  those  paying  may 
recover  from  those  not  paying,  the  aliquot  proportion  which 
they  ought  to  pay.  (c)  The  persons  not  paying,  but  being 
relieved  from  a  positive  liability  by  the  payment  of  others 
who  were  bound  with  them,  are  held  by  the  law  as  under  an 
implied  promise  to  contribute  each  his  share  to  make  up  the 
whole  sum  paid,  [d)     And  this  rule  applies  equally  to  those 


J.  $300,  namely,  to  each  of  them  one 
moiety  thereof.  Held,  a  several  cove- 
nant, so  that  B.,  as  the  survivor  of  the 
two,  could  not  maintain  an  action  to 
recover  the  -whole  sum.  —  Ulmer  v. 
Cunningham,  2  Greenl.  117.  Assump- 
sit for  money  had  and  received.  Goods, 
belonging  to  some,  and  not  to  all,  of 
sundry  joint  debtors,  were  taken  in  exe- 
cution and  wasted.  Held,  that  all  the 
debtors  could  not  maintain  a  joint 
action  against  the  sheriff,  and  that  those 
only  ought  to  have  sued  whose  property 
was  actually  wasted. 

(c)  Harbert'scase,  13  Co.K.  13  a,  15  b; 
Layer  v.  Nelson,  1  Vernon,  456 ;  Tous- 
saint  V.  Martinnant,  2  T.  R.  104  ;  Kemp 
V.  Finden,  12  M.  &  "W.  421  ;  Browne  v. 
Lee,  6  B.  &  Cress.  689  ;  Sadler  v.  Nixon, 

5  B.  &  Ad.  936  ;  Holmes  u.  Williamson, 

6  M.  &  Sel.  159 ;  Blackett  v.  Weir,  5  B. 
&  Cress.  387  ;  Lanchester  v.  Tricker,  1 
Bing.  201 ;  Boulter  v.  Peplow,  9  Com. 
Bench,  193.  In  Offley  and  Johnson's 
case,  2  Leon.  166  [A.  D.  1584,]  the 
Court  of  King's  Bench  held  that  one 
surety  had  no  right  at  common  law  to 
recover  contribution  from  a  co-surety. 
"  The  first  case  of  the  kind  in  which  the 
plaintiff  succeeded  was  before  Gould,  J., 
at  Dorchester."  Buller,  J.,  2  T.  R.  105. 
—  The  action  for  money  paid  to  recover 
contribution  is  founded  upon  the  old  writ 
de  contrihutione  facienda.  Tindal,  C.  J., 
Edger  v.  Knapp,  5  M.  &  Gran.  758,  citing 

[32] 


Eitzherbert's  Natura  Brevium,  378,  in 
edition  of  1794,  p.  162.  From  the  pas- 
sage in  Fitzherbert,  as  the  English  ver- 
sion is  amended  by  the  learned  reporter 
of  Edger  v.  Knapp,  (5  M.  &  Gran.  758, 
759.)  it  seems  a  parcener  distrained  upon 
is  entitled  to  contribution  without  any 
express  agreement  on  the  part  of  her  co- 
parceners, while  to  entitle  a  joint  feoffee 
to  contribution,  under  similar  circum- 
stances, the  other  feoffees  must  have 
agreed  to  contribute.  In  analogy  to 
the  case  of  feoflfees,  one  partner  in  order 
to  entitle  himself  to  recover  contribution 
of  his  copartner,  is  bound  to  show  a  con- 
tract independent  of  the  relation  of 
partner:  Tindal,  C.  J.,  5  M.  &  Gran. 
759.  It  is  not  sufficient  for  him  to  show 
that  the  payment  made  on  account  of 
his  copartners  was  made  hy  coiiipulsion 
of  law.  Sadler  v.  Nixon,  5  B.  &  Ad. 
936.  —  In  Hunter  v.  Hunt,  1  Com. 
Bench,  300,  plaintiff  and  defendant  re- 
spectively M'ere  under-lessees,  at  distinct 
rents,  of  separate  portions  of  premises, 
the  whole  of  which  were  held  under  one 
original  lease,  at  an  entire  rent.  Plain- 
tiff, having  paid  the  whole  under  a 
threat  of  distress,  brought  an  action 
against  defendant  to  recover  the  pro- 
portion of  rent  due  from  him,  as  for 
money  paid  to  his  use :  —  Held,  that  the 
action  was  not  maintainable. 

(c/)  Contribution  was  at  first  enforced 
only  in  equity,  and  Lord  Eldon  regret- 


CH.  II.] 


OF    JOINT    PARTIES. 


*33 


who  are  bound  as  original  co-contractors,  and  to  those  who 
are  bound  to  pay  the  debt  of  another  or  answer  for  his  de- 
fault, as  co-sureties,  (e) 

*  The  payment,  to  establish  a  claim  for  contribution,  must 
be  compulsory.  But  this  does  not  mean  that  there  must  be 
a  suit,  but  only  a  fixed  and  positive  obligation.  (/)     For 


ted  (not  -without  reason,  in  the  opinion 
of  Baron  Parke,  6  M.  &  W.  168.)  that 
courts  of  hiw  ever  assumed  jurisdiction 
of  the  subject.  It  is  universally  ad- 
mitted that  the  duty  of  contribution 
originates  in  the  equitable  consideration 
that  those  who  have  assumed  a  common 
burden  ought  to  bear  it  equally  :  from 
this  equitable  obligation  the  law  implies 
a  contract,  since  all  who  have  become 
jointly  liable  may  reasonably  be  con- 
sidered as  mutually  contracting  among 
themselves  with  reference  to  the  dut}'  in 
conscience.  Lord  Eldon,  Craythorne 
W.Swinburne,  14  Ves.  160,  169,  (adopt- 
ing the  view  taken  by  Romilly  arguendo)  ; 
Campbell  v.  Mesier,  4  Johns.  Ch.  334  ; 
Landsdale  i'.  Co.x,  7  Monroe,  401  ; 
Fletcher  v.  Grover,  11  N.  H.  368; 
Johnson  v.  Johnson,  11  Mass.  3-59  ; 
Chaffee  v.  Jones,  19  Pick.  264  ;  Hor- 
bach  V.  Elder,  18  Penn.  33.  — Assump- 
sit for  money  paid  is  the  usual  action 
for  enforcing  contribution,  and  its  pro- 
priety, before  taken  for  granted,  was 
confirmed  in  Kemp  v.  Finden,  12  M.  & 
"W.  421. 

(e)  The  payee  of  a  note,  given  by  the 
defendant's  testator  as  principal,  neglect- 
ed to  present  it  to  the  executor  within 
two  years  after  the  original  grant  of  ad- 
ministration, and  was  by  statute  barred 
of  his  action  against  him.  The  plaintiff 
who  signed  the  note  as  surety  was  held 
not  to  be  discharged  by  the  creditors 
neglect  to  present  his  claim,  and  having 
paid  the  note  was  entitled  to  recover  the 
amount  of  the  executor.  Sibley  v.  Mc- 
Allaster,  8  New  Hamp.  389.  Bacheldcr 
V.  Fiske,  17  Mass.  464,  was  perhaps  the 
earliest  case  where  the  executor  of  a  de- 
ceased co-debtor  was  held  liable  at  law 
for  contribution.  The  court  there  met 
the  technical  objections  that  were  raised, 
with  the  maxim,  Vbi  jus  ibi  remedium. 
And  see  McKenna  v.  George,  2  Eich. 
Eq.  15. 

The  surviving  surety  on  a  joint  admi- 
nistration bond,  on  account  of  which  he 
was  compelled  to  make  large  payments, 
sought  to  recover  contribution  from  the 


representatives  of  a  deceased  co-surety 
—  it  was  held,  that  in  the  case  of  a  joint 
bond,  the  remedy  at  law  survives  against 
the  surviving  obligor,  and  is  lost  against 
the  representatives  of  him  who  dies  first; 
that  where  all  the  obligors  are  princi- 
pals, equity  will  enforce  contribution 
though  the  remedy  at  law  is  gone,  but 
in  case  of  a  surety  it  will  not  interfere 
to  charge  him  beyond  his  legal  liability 
in  the  absence  of  fraud,  accident,  or  mis- 
take ;  that  although  a  surety  who  has 
paid  the  debt  may  compel  his  living  co- 
surety to  contribute,  he  has.no  such 
right  either  at  law  or  in  equity,  against 
the  estate  of  a  deceased  co-surety,  be- 
cause the  liability  of  the  creditor  was 
terminated  by  his  death  and  cannot  be 
indirectly  revived-  Waters  r.  Riley,  2 
H.  &  Gill,  305.  But  see  the  able  dis- 
senting opinion  of  Archer.  J. 

{/)  Pitt  V.  Purssord,  8  M.  &  W.  538  ; 
Maydew  v.  Forrester,  5  Taunt-  615;  Da- 
vies  V.  Humphreys,  6  INI.  &  AV.  153  ; 
Lord  Kenyon,  Child  v.  Morley,  8  T.  R. 
614;  Frith  r.  Sprague,  14  Mass.  455; 
Rus.sell  r.  Failor,  1  Ohio  State  Reps. 
327.  —  It  has  even  been  held  that  a 
surety  paying  when  he  had  a  good  de- 
fence, which  defence,  however,  was  not 
available  to  the  principal  if  he  had  been 
sued  by  the  creditor,  may  recover  of 
the  principal;  Shaw  v.  Loud,  12  Mass. 
461.  AVhether  contribution  can  be  re- 
covered for  the  costs  of  a  suit  sustained 
in  resisting  payment  is  left  in  doubt  by 
the  authorities.  Lord  Tenterden  ruled 
against  contribution  for  costs  in  Roach 
V.  Thompson,  M.  &  Malk.  489 ;  Gillett 
V.  Rippon,  lb.  406  ;  Knight  v.  Hughes, 
lb.  247  ;  in  the  latter  case  intimating 
that  there  might  be  a  distinction  be- 
tween a  case  between  two  sureties  (the 
case  before  him)  and  a  case  of  surety 
against  principal.  But  in  Kemp  v. 
Finden,  12  M.  &  W.  421,  where  the 
plaintiff  and  defendant  had  executed, 
as  sureties,  a  warrant  of  attorney,  given 
as  collateral  security  for  a  sum  of  money 
advanced  on  mortgage  to  the  principals, 
and,  ou  default  being  made  by  the  prin- 

[33] 


34 


THE   LAW   OF   CONTKACTS. 


BOOK  I. 


where  a  contract  is  broken,  the  surety  may  pay  without  suit 
and  hold  the  principal,  and  a  co-surety  may  pay  and  hold  the 
co-sureties  to  contribution,  {g-)  And  the  right  to  contribu- 
tion arises  although  the  co-surety  paid  the  debt  aftej  giving 
a  bond  for  it  without  the  knowledge  of  the  co-sureties,  (h) 

A  defendant  in  an  action  ex  contractu,  where  judgment 
was  rendered  for  the  plaintiff,  upon  satisfying  the  execution, 
makes  out  a  claim  for  contribution  against  other  parties,  by 
showing  either  that  such  parties  were  co-defendants  in  the 
action,  or  that  they  were  jointly  liable  in  fact  for  the  debt 


cipals,  judgment  was  entered  up  on  the 
warrant  of  attorney,  and  execution  is- 
sued against  the   plaintiff,  it  was  held 
that  he  was  entitled  to  recover  from  the 
defendant  as  his  co-surety  a  moiety  of  the 
costs  of  such  execution.    ParJce,  B.,  said, 
"  They  were  costs  incurred  in  a  proceed- 
ing to  recover  a  debt  for  which,  on  de- 
fault of  the  principals,  both  the  sureties 
were  jointly  liable ;  and  the  plaintifFhav- 
ing  paid  the  whole  costs,  I  see  no  reason 
why  the  defendant  should  not  pay  his 
proportion."  —  A  surety  to  a  note  was 
subjected  to  costs  in  consequence  of  its 
non-payment  by  the  principal ;   there 
was   an  agreement  in  writing  to  save 
him  harmless ; — held,  that  he  was  enti- 
tled to  recover  the  costs  so  paid  by  him 
in  an  action  against  the  principal.  Bon- 
ney  v.  Seely,  2  Wend.  481.    In  Cleve- 
land V.   Covington,  3   Strob.  L.  184,  it 
was  held  that  as  a  general  rule  a  prin- 
cipal was  liable  for  costs  incurred  by 
the  surety,  and  was  therefore  incompe- 
tent as  a  witness  in  an  action  against  him. 
Where   a  judgment,  recovered  against 
an  insolvent  principal,  and  his  two  sure- 
ties, was  paid  by  one  of  them,  held,  that 
he  could  recover  of  his  co-surety  one 
half  of  the  costs.     Davis  v.  Emerson, 
17  Maine,  64.    And  in  Fletcher  v.  Jack- 
son, 23  Verm.   593,  the  right  of  a  co- 
surety to  recover  costs  and  expenses  is 
said   to   depend    altogether    upon   the 
question  whether  the  defence  was  made 
under  such  circumstances  as  to  be  re- 
garded as  hopeful  and  prudent ;  if  so, 
the  expenses  of  defence  may  always  be 
recovered. — But  not  if  the  surety  be 
notified  that  there  is  no  defence.     Beck- 
ley   V.   Munson,    22    Conn.    299.  —  In 
Boardman  v.  Paige,  11  N.  Hamp.  431, 
where  an  action  was  commenced  by  the 
holder  of  a  note  against  all  the   co- 
signers,  and  judgment  was    recovered 

[34] 


against  one  only,  it  was  held  that  upon 
payment  of  damages  and  costs  of  the 
judgment,  the  paity  against  whom  the 
judgment  was  recovered  was  not  enti- 
tled to  contribution  from  the  other  co- 
signers in  respect  of  the  costs — the  same 
not  being  a  burden  common  to  all  the 
co-signers  of  the  note. — It  would  seem 
not  unreasonable  to  conclude,  notwith- 
standing the  ?u's2 /)nMS  decisions  of  Lord 
Tenter  den,  that  where  the  party  from 
Avhoni  contribution  is  sought  was  at  the 
time  of  the  former  action  directly  liable 
for  the  debt  to  the  creditor,  so  that  if  the 
latter  had  chosen  he  might  have  been 
sued  by  him,  contribution  may  be  reco- 
vered for  the  costs  of  the  judgment, 
though  not  perhaps  for  costs  incurred  in 
resisting  payment  of  the  judgment.  Yet 
in  the  late  case  of  Henry  v.  Goldney,  15 
M.  &  W.  494, 496,  an  action  ex  contractu 
being  brought  against  A.,  and  he  plead- 
ing in  abatement  the  pendency  of  ano- 
ther action  for  the  same  cause  against 
B.,  it  was  contended  that  the  plea  ought 
to  be  sustained,  to  prevent  A.  from  be- 
ing twice  vexed  for  the  same  cause ; 
but  Alderson,  B.,  observed,  "  How  is 
A.  vexed  by  an  action  being  brought 
against  B.  ?  B.  cannot  recover  against 
A.  kis  proportion  of  the  costs." 

ig)  It  has  been  held  in  Kentucky 
that  the  principal  must  be  insolvent  to 
render  a  co-surety  liable  to  contribute  to 
another  who  has  paid  the  debt.  Pearson 
V.  Duckham,  3  Litt.  386  ;  Daniel  v.  Bal- 
lard, 2  Dana,  296.  But  this  is  opposed 
to  the  prevailing  doctrine.  Cowell  v. 
Edwards,  2  B.  &  Pull.  268  ;  Odin  v. 
Greenleaf,  3  New  Hamp.  270. 

(A)  Dunn  v.  Slee,  Holt,  399  ;  where 
it  was  also  held  by  Park,  J.,  that  time 
given  to  one  surety  is  no  bar  to  an  ac- 
tion afterwards  by  that  surety  against  a 
CO- surety. 


CH.  IL] 


OF  JOINT   PARTIES. 


*35 


which  was  made  a  cause  of  action  against  him  alone.  (^) 
But  in  the  latter  case  the  joint  liability  must  not  be  a  liabi- 
lity  as  copartners,  (j) 

At  law  a  surety  can  recover  from  his  co-surety  only  that 
co-surety's  aliquot  part,  calculated  upon  the  whole  number, 
without  reference  to  the  insolvency  of  others  of  the  co-sure- 
ties ;  (k)  but  in  Equity  it  is  otherwise,  (l) 

*  The  contract  of  contribution  is  a  several  contract,  (m) 
And  hence  a  surety  may  release  one  of  his  co-sureties  with- 
out barring  his  right  of  action  against  the  rest,  although  he 
may  not  the  principal  debtor,  (n)  But  if  two  co-sureties  pay 
the  debt  out  of  a  joint  fund,  their  right  of  action  against 
the  principal,  and  as  it  would  seem  against  other  co-sureties, 
is  joint,  (o) 

The  contract  on  which  the  assumpsit  is  founded  dates 


{{)  In  Murray  v.  Bogert,  14  Johns. 
318,  it  was  held  that  where  A.,  who 
claims  contribution  of  B.  and  C,  on  the 
ground  of  having  paid  a  judgment,  shows 
neither  that  B.  and  C.  were  parties  to  the 
judgment,  nor  that  the  debt  was  a  joint 
one,  not  arising  out  of  a  partnership 
transaction,  he  must  be  nonsuited.  The 
reporter's  abstract  seems  incorrect,  in  so 
far  as  it  represents  the  court  as  holding 
that  the  mere  absence  of  proof  that  the 
defendants  were  parties  to  the  judgment 
was  fatal  to  the  claim  of  contribution. 
Such  a  doctrine  would  be  directly  in  the 
face  of  Holmes  v.  Williamson,  6  M.  & 
Sel.  1 58  ;  Burnell  v.  Minot,  4  Moore, 
340  ;  Boardman  v.  Paige,  UN.  Hamp. 
431. 

( J )  Sadler  v.  Nixon,  5  B.  &  Ad.  936 ; 
Edger  v.  Knapp,  5  M.  &  Gran.  758 ; 
Murray  v.  Bogert,  14  Johns.  318  ;  Pear- 
son V.  "Skelton,  1  M.  &  W.  504,  where 
the  former  action  was  ex  delicto.  But 
where  the  joint  contractors  were,  toge- 
ther with  many  others,  partners  in  a  joint 
stock  company,  of  which  they  were  the 
contract  committee  men,  contribution 
was  enforced  between  them  on  account 
of  the  joint  liability  incurred  by  them  as 
such  committee.  Boulter  v.  Peplow,  9 
Com.  Bench.  493. 

(k)  Browne  v.  Lee,  6  B.  &  Cress.  689 ; 
CowcU  V.  Edwards,  2  B.  &  Pull.  268.— 
Shaw,  C.  J.,  Chaffee  v.  Jones.  19  Pick. 
265. 

(/)  Peter  v.  Rich,   1    Ch.  Rep.   34 ; 


Cowell  V.  Edwards,  2  B.  &  Pull.  268.— 
And  in  Vermont  the  rnle  of  equity  has 
been  held  to  be  the  rule  of  law  also. 
Mills  V.  Hyde,  19  Verm.  59.  See  also 
Henderson  v.  McDufFee,  5  New  Hamp. 
38,  accord.  ;  but  there  the  decision  went, 
partly  at  least,  on  the  necessity  of  the 
case,  there  being  no  court  to  administer 
equitable  relief.  It  has  been  decided  in 
South  Carolina,  that  co-sureties  who  are 
not  within  the  jurisdiction,  as  well  as 
insolvent  co-sureties,  arc  to  be  excluded 
in  the  calculation  of  the  proportion  to 
be  contributed  by  those  against  whom 
payment  can  be  enforced.  McKenna  v. 
George,  2  Richards.  Eq.  15. 

(m)  Kelby  v.  Steel,  5  Esp.  194 ;  Gra- 
ham V.  Robertson,  2  T.  R.  282  ;  Brand 
V.  Boulcott,  3  B.  &  Pull.  235 ;  Birkley 
V.  Presgrave,  1  East,  220;  Parker  v. 
Ellis,  2  Sandf.  S.  Ct.  R.  223. 

(n)  Crowdus  v.  Shelby.  6  J.  J.  Marsh. 
61 ;  Fletcher  v.  Grover,  11  New  Hamp. 
368  ;  Fletcher  v.  Jackson,  23  Verm. 
581. 

(o)  Osborne  v.  Harper,  5  East,  225  ; 
Boggs  V.  Curtin,  10  S.  &  Rawle,  211 ; 
Pearson  v.  Parker,  3  New  Hamp.  366 ; 
Jewett  V.  Cornforth,  3  Greenl.  107  ; 
Fletcher  v.  Jackson,  23  Verm.  593. 
Contra,  Gould  v.  Gould,  8  Cowen,  168; 
but  Kelby  v.  Steel,  5  Esp.  194,  on  the 
authority  of  which  this  case  seems  to 
have  been  decided,  is  quite  distinguish- 
able from  Osborne  v.  Harper. 

[35] 


36*  THE   LAW   OF   CONTRACTS.  [BOOK  I. 

from  the  time  ivhen  the  relation  of  co-surety  or  co-obligor  is 
entered  into ;  although  the  cause  of  action  does  not  arise  till 
the  payment.  Hence  the  discharge  of  one  of  the  joint  debtors 
(by  whatever  cause)  from  his  direct  liability  to  the  creditor, 
does  not  relieve  him  in  law,  any  more  than  in  equity,  from 
his  obligation  to  indemnify  such  of  the  remaining  joint  debt- 
ors as  have  borne  more  than  their  original  proportion  of  the 
debt,  {p) 

The  undertaking  which  is  to  serve  as  the  foundation  of  a 
claim  of  contribution  must  be  joint,  not  separate  and  succes- 
sive. Thus,  the  second  indorser  of  a  promissory  note  is  not 
liable  to  the  first,  though  neither  be  indorser  for  value ;  (q) 
unless  there  be  an  agreement  between  the  indorsers  that, 
as  between  themselves,  they  shall  be  co-sureties,  (qq)  And 
a  guarantor  cannot  be  compelled  to  contribute  in  aid  of  a 
surety,  (r) 

The  right  of  contribution  exists  against  all  who  are  sure- 
ties for  the  same  debt,  although  their  primary  liability  depends 
upon  different  instruments.  Where  two  bonds,  for  example, 
*are  given  for  the  performance  of  the  same  duty,  and  A.  and 
B.  sign  as  sureties  in  one,  and  C.  and  D.  in  the  other,  A.,  if 
he  pay  the  debt,  may  in  equity  recover  one  fourth  of  the 
whole  from  each  of  the  rest,  (s) 

A  party  acquires  a  right  to  contribution  as  soon  as  he 
pays  more  than  his  share,  but  not  until  then  ;  (t)  and  con- 


(;;)  Accorclinp;ly,  where  the  liability  the  last  of  four  sureties  for  H.  in  a  joint 

of  one  joint  maker  of  a  promissory  note  promissory  note,  was  not  bound  to  make 

was  continued  by  partial  payments  with-  contribution  to  the  plaintiff  who  was  the 

in  six  years,  but  the  remedy  of  the  hold-  first  surety  and  had  paid  the  debt,  the 

er  against  the  other  was  barred  by  the  defendant  having  qualified  his   under- 

statute   of  limitations,  the  debtor  who  taking  by  adding  to  his  signature  the 

continued  liable  could  notwithstanding  words  "  surety  for  the  above  names." 
recover    contribution    from    the    others  ,  >  Dppr'no-        Wnrhelsea  '^  Bos  & 

after  paying  the  debt.     Peaslee  v.  Breed,  t>  i   n-r>     i,r^  f '       ^  t^  ■  \    ..1  Z,  c 

irv  TVT       TJT  Aon         A   v>       A  I'ul.  2/0;  Mayhcw  t'.  Crickett,  2  SwaHs. 

10  New  Hamp.  489  ;  and  Boardman  z;.  ,0=     /->      .u  c    •  u  i  ^  it- 

T>  •       1,  -v'       ti  ^01  185;  Craythorne  r.  Swrnhurne,  14  Ves. 

Paisre,  11  New  Hamp.  431.  i^r.       e    '1/    »u  •     ■   1  1, 

/   \  \r  T-.       11        HT         A^      o   T)  ^  160.     oem6/e,  the  same  prmciple  may  be 

(o)  McDonald  v.  Magruder,   3   ret.  „     ,•   ■,     ^  ,'        „       '     ^    t    xt  ^ 

jt\     -n  ►      -n     *    -  n  cU   kki  applied  at  law;  Bronson,  C.  J.,  Norton 

470;  Decreet  f.  Burt,  /  Cush.  551.  „   n^^„„    o  -n„,^^    iQn   tjo     n\    a- 

I     \  TIT    ^  n>\       \     1  •     "  n    u  V-  Ooons,  3  Demo,  130,  132 ;  Chanee  v. 

(qq)  Weston  z\  Chamberlam,  /  Cush.  t^„„„     ,'0   ,;,•  ,     '„eA    oc.     t?   •  i 

^r.\     XT  T-»     •     o  ri  „►.„„   t     c  „  Jones,    19   Pick.   260,   264;  Enicks   v. 

404:  Hoguc  f.  Davis,  8  Crrattan,  4.    bee  t>„„,„ii   o  c»    u   t?      mc 

1      TIT      c  ^^      T)  ic -n    u   r? ■  c  Powcil,  2  btrob.  Eq.  196. 

also  Westfall  v.  Parsons,  16  Barb.  645  ;  '  ^ 

Pitkin  V.  Flanagan,  23  Verm.  160.  (t)  Davies  v.  Humphreys,  6  M.  &  W. 

(r)  Longlev  I'.  Griggs.  10  Pick.  121.  153;  Lord  Eldon,  ex   parte   Gifl:ord,  6 

In  Harris  v.   Warner,  13  Wend.  400,  it  Ves.  808;  Lytle  v.  Pope,  11  B.  Mon. 

was  held  that  the  defendant,  who  was  297. 

[36] 


CH.  III.] 


OF  JOINT  PARTIES. 


*3T 


sequently  the  statute  of  limitations  does  not  begin  to  run 
until  then,  {ii) 

The  law  does  not  raise  any  such  implied  promise,  or  right 
to  contribution,  among  wrongdoers,  or  where  the  transaction 
was  unlawful,  (v)  If  money  be  recovered  in  an  action 
grounded  upon  a  tort  it  gives  no  ground  for  contribution,  (w) 
Still,  however,  contribution  is  sometimes  enforced  where  he 
who  is  to  be  benefited  by  it  did  not  know  his  act  to  be 
illegal,  or  where  it  was  of  doubtful  character,  (x) 

*The  implied  promise  and  the  right  to  contribution  rest- 
ing upon  it  may  be  controlled  by  circumstances  or  evidence 
showing  a  different  understanding  between  the  parties;  thus, 
a  surety  cannot  exact  contribution  of  one  who  became  co- 
surety at  his  request,  (y) 


(m)  Davies  v.  Humphreys,  C  M.  &  W. 
153;  Ponder  v.  Carter,  12  Ire.  Law 
242. 

(u)  Pitcher  v.  Bailey,  8  East,  171; 
Booth  V.  Hodgson,  6  T.  R.  405. 

(ic)  Merry  weather  v.  Nixan,  8  T.  R. 
18C;  Farebrother  v.  Ansley,  1  Camp. 
343 ;  Wilson  v.  Milner,  2  Camp.  452 ; 
Thweatt  v.  Jones,  1  Band.  328. 

(x)  Betts  V.  Gibbins,  2  Ad.  &  El.  57  ; 
4  N.  &  M.  64.  There  the  defendants 
having  sold  ten  casks  of  goods  and  sent 
them  to  the  plaintifts  to  deliver  to  buyer, 
subsequently  ordered  the  plaintiffs  to  de- 
liver a  portion  of  them  to  another  per- 
son, which  order  they  obeyed.  It  was 
held,  that  a  promise  to  indemnify  the 
plaintiffs  might  be  implied  from  the 
facts,  on  which  they  could  recover  for 
the  injury  sustained  in  consequence  of 
fulfilling  the  order,  although  they  had 
no  right  to  detain  the  goods  or  change 
their  destination  —  the  general  rule  that 
between  wrongdoers  there  is  neither  in- 
demnity nor  contribution  not  applying 
where  the  act  is  not  clearly  illegal  in 
itself,  and  is  done  bond  Jide. — In  Adam- 
son  V.  Jarvis,  4  Bing.  6*G,  72,  Best,  C.  J., 
said,  "  It  was  certainly  decided  in  Mer- 
ryweather  r.  Nixan,  that  one  wrongdoer 
could  not  sue  another  for  contribution  ; 
Lord  Kenyon,  however,  said,  '  that  the 
decision  would  not  aff'ect  cases  of  indem- 
nity, where  one  man  employed  another 
to  do  acts,  not  unlawful  in  themselves, 
for  the  purpose  of  asserting  a  right. 
This  is  the  only  decided  case  on  the 
subject  that  is  intelligible.  There  is  a 
VOL.  I.  4 


case  of  "Walton  v.  Hanbury  and  others, 
(2  Vern.  592,)  but  it  is  so  imperfectly 
stated,  that  it  is  impossible  to  get  at 
the  principle  of  the  judgment.  The 
case  of  Philips  v.  Biggs,  (Hard.  164,) 
was  never  decided ;  but  the  Court  of 
Chancery  seemed  to  consider  the  case 
of  two  sheriffs  of  Middlesex,  where  one 
had  paid  the  damages  inan action  for  an 
escape,  and  sued  the  other  for  contributiort 
as  like  the  case  oftico  joint  obligors.  From 
the  inclination  of  the  court  in  this  last 
case,  and  from  the  concluding  part  of 
Lord  Kenyan's  judgment  in  Merrywca- 
ther  V.  Nixan,  and  from  reason,  jus- 
tice, and  sound  policy,  the  rule  that 
wrongdoers  cannot  have  redress  or  con- 
tribution against  each  other,  is  confined 
to  cases  where  the  person  seeking  re- 
dress must  be  presumed  to  have  known 
that  he  was  doing  an  unlawful  act." — 
Wooley  V.  Batte,  2  C.  &  Payne,  417  ; 
a  party  having  recovered  damages  in 
case  against  one  of  two  joint  coach  pro- 
prietors for  an  injury  sustained  by  the 
negligence  of  their  servants  ;  held,  that 
such  proprietor  (he  proving  that  he  was 
not  personally  present  when  the  acci- 
dent happened)  might  maintain  an  ac- 
tion against  his  co-proprietor  for  contri- 
bution. See  also  Ives  v.  Jones,  3  Ire. 
L.  538.  But  there  can  be  no  recovery 
in  such  case  if  the  two  proprietors  are 
partners.  Pearson  v.  Skelton,  1  M.  & 
W.  504.  See  Thweatt  v.  Jones,  1 
Rand.  328. 

(w)  Turner  v.  Davies,  2   Esp.  478; 
Bycrs  v.  McClanahan,  6  G.  &  Johns. 

[37] 


87 


THE  LAW   OF   CONTRACTS. 


[book  I. 


The  commercial  law  of  France,  and  of  continental  Europe 
generally,  admits  the  right  to  contribution,  and  regulates  it 
much  as  the  law  of  England  and  this  country,  (z)  The  civil 
law  wholly  rejects  it.  (a)  But  by  a  decree  of  the  Emperor 
Hadrian,  a  co-surety  being  sued,  might  require  the  plaintiff 
to  proceed  against  all  liable  jointly  with  him.  He  could  not 
therefore  be  compelled  to  pay  the  whole  unless  through  his 
own  neglect,  (b) 


256 ;  Daniel  v.  Ballard,  2  Dana,  296 ; 
Taylor  v.  Savage,  12  Mass.  98,  103. 
And  see  Thomas  v.  Cook,  8  B.  &  Cress. 
728;  Harris  v.  Warner,  13  Wend.  400; 
Eobison  v.  Lyle,  10  Barb.  .512.  But 
such  an  agreement  cannot  be  shown  by 
parol  evidence  when  the  guaranteed  ob- 
ligation is  in  writing.  Norton  v.  Coons, 
2  Seld.  33. 


(z)  Code  Civ.  Art.  2033 ;  1  Pothier 
on  Obligations,  by  Evans,  291. 

(a)  Dig.  46,  1,39. 

(b)  Inst.  3,  21,4.  If  the  surety,  on 
paying  the  debt,  took  the  precaution  to 
obtain  a  subrogation,  he  might  exer- 
cise the  actions  of  the  creditor  against 
his  co-sureties ;  1  Pothier  on  Obi.  by 
Evans,  291  ;  Cod.  8,  41,  11;  Dig.  46, 
1,39. 


[38] 


en.  III.]  AGENTS.  38 

CHAPTER  III. 

AGENTS. 

Sect.   I. —  Of  Agency  in  General. 

The  law  of  agency  is  now  of  very  great  importance.  Such 
is  the  complexity  of  human  affairs  in  civilized  society,  that 
very  few  persons  are  able  to  transact  all  their  business,  sup- 
ply all  their  wants,  and  accomplish  all  their  purposes,  with- 
out sometimes  employing  another  person  to  represent  them, 
and  act  for  them,  and  in  their  stead.  Such  person  becomes 
their  agent,  and  the  person  employing  an  agent  is  his  prin- 
cipal. 

There  are  two  principles  in  relation  to  the  law  of  agency, 
on  one  of  which  it  is  founded,  while  the  other  measures  the 
responsibility  of  the  principal  for  the  acts  of  an  agent.  The 
first  of  these  is,  that  the  agent  is  but  the  instrument  of  the 
principal,  who  acts  by  him;  a  hI  a  principal  assumes  the  re- 
lations, acquires  the  rights,  and  incurs  the  obligations  which 
are  the  proper  results  of  his  acts,  equally,  whether  he  does 
these  mediately,  or  directly  ;  whether  he  uses  an  unconscious 
and  material  instrument,  or  a  living  and  intelligent  instru- 
ment ;  whether  he  signs  his  name  by  a  pen  which  he  takes 
from  the  table,  or  by  a  man  whom  he  requests  to  sign  his 
name  for  him.  In  either  case,  the  thing  done  is  the  act  of 
the  principal ;  and,  to  a  considerable  extent,  the  law  identifies 
the  agent  with  the  principal,  although  for  some  purposes,  and 
in  some  respects,  the  agent  incurs  his  own  share  of  responsi- 
bility, or  acquires  his  own  rights,  by  the  act  which  he  per- 
forms as  the  act  of  another.  The  second  of  these  principles 
is,  that,  as  between  the  principal  and  a  third  party  who  has 
supposed  himself  to  deal  with  a  principal  by  means  of  one 
purporting  to  be  his  agent,  the  principal  is  responsible  for  and 
is  bound  by  the  acts  of  his  agent,  not  only  when  he  has  actu- 
ally created  this  agency,  but  when  he  has,  by  words  or  acts, 

[39] 


39  THE   LAW   OF   CONTRACTS.  [BOOK   I. 

distinctly  authorized  the  third  party  to  believe  the  person  to 
be  his  agent.  If  he  has  justified  the  belief  of  the  third  party, 
that  this  person  had  from  him  sufficient  authority  to  do  as  his 
agent  that  precise  thing,  it  is  no  answer  on  his  part,  to  say 
that  the  agent  had  no  authority,  or  one  which  did  not  reach 
so  far,  and  that  it  was  a  mistake  on  the  part  of  the  third 
party.  It  may  have  been  his  mistake,  but  the  question  then 
is,  whether  the  principal  led  this  third  party  into  the  mistake. 
And  in  deciding  this  question,  all  the  circumstances  of  the 
transaction,  and  especially  the  customary  usages  in  relation 
to  such  transactions,  come  into  consideration. 

This  principle  applies  to  the  important  distinction  between 
a  general  agent  and  a  particular  agent,  (c)  A  general  agent 
is  one  authorized  to  transact  all  his  principal's  business,  or  all 
his  business  of  some  particular  kind.  A  particular  agent  is 
one  authorized  to  do  one  or  two  special  things.  But  it  is 
not  always  easy  to  find  a  precise  rule  which  determines 
with  certainty  between  these  two  kinds  of  agency.  A  manu- 
facturing corporation  may  authorize  A.  to  purchase  all  their 
cotton,  and  he  is  then  their  general  agent  for  this  especial 
purpose,  or  to  purchase  all  the  cotton  they  may  have  occasion 
to  buy  in  New  Orleans,  and  then  he  may  be  called  their 
general  agent  for  this  especial  purpose  in  that  place.  Or  to 
purchase  the  cargoes  that  shall  come  from  such  a  plantation, 
or  shall  arrive  in  such  a  ship  or  ships,  or  five  hundred  bales  of 

(c)  See  Jaques  v.  Todd,  3  Wend.  83 ;  authority,  and  never  except  for  those.    In 

Anderson  v.  Coonley,   21  Wend.  279;  the  case  of  a  particular  agent,  the  scope 

Savage   v,   Kix,   9  New  Hamp.  263  ;  of  authority  is  measured  by  the  express 

Whitehead  v.  Tucliett,  15  East,  400. —  directions  he  has  received  ;  in  the  case 

The  terra  Agency  seems  to  imply  two  of  a  general  agent  the  law  permits  usage 

quite  distinct  things,  namely,  a  contract  to  enter  in  and  enlarge  the  liability  of 

betweca  principal  and  agent,  and  the  the  principal.    This  usage,  however,  is 

legal  means  by  which  the  principal  is  not  a  uniform,  unvarying  rule;  in  other 

made  without  his  direct  participation,  a  words  there  is  no  common  scope  of  au- 

Party  to  a  contract  with  a  third  person,  thoritypredicable  of  every  general  agent. 

Noadvantage,  but  only  confusion,  seema  To  say  of  a  certain  one  he  is  general 

to  result  from  blending  these  two  things,  agent  is  not  enough  to  describe  his  pow- 

If,  in  considering  Agency  in  the  latter  crs,  or  to  determine  the  extent  of  his 

aspect,   the  domestic  contract  between  principal's  liability:  it  is  next  to  be  as- 

agent  and  principal  could  be  excluded  certained  for  what  particular  business  he 

from  the  mind,  and  reserved  for  separate  is  thus  general  agent.     This  done,  the 

observation,  it  might  conveniently  be  agency  is  brought  within  a  class,  and 

laid  down  as  the  rule  of  law  that  the  the  qualities  attach  to  it  which  the  law, 

principal  is  in  all  cases  bound  for  acts  of  using  the  light  of  mercantile  custom, 

the  agent  done  within  the  scope  of  his  affixes  to  the  class  at  large. 

[40] 


CH.   III.] 


AGENTS. 


40 


cotton,  and  then  he  is  their  particular  agent  for  this  particular 
transaction. 

The  importance  of  the  distinction  lies  in  the  rule,  that  if 
a  particular  agent  exceed  his  authority,  the  principal  is  not 
bound ;  [d)  but  if  a  general  agent  exceed  his  authority  the 

limitations  upon  the  authority  of  the 
agent.  It  is  only  because  they  arc  not 
to  be  regarded  as  part  of  the  authority 
given,  or  a  limitation  upon  that  author- 
ity, that  the  act  of  the  agent  is  valid, 
although  done  in  violation  of  tiiem  ;  and 
the  matter  depends  upon  the  character 
of  the  communications  thus  made  by  the 
principal,  and  disregarded  by  the  agent. 
Thus,  where  one  person  employs  another 
to  sell  a  horse,  and  instructs  him  to  sell 
him  for  $100,  if  no  more  can  be  obtained, 
but  to  get  the  best  price  he  can,  and  not 
to  sell  him  for  less  than  that  sum,  and 
not  to  state  how  low  he  is  authorized  to 
sell,  because  that  will  prevent  him  from 
obtaining  more.  Such  a  private  instruc- 
tion can  with  no  propriety  be  deemed  a 
limitation  upon  his  authority  to  sell, 
because  it  is  a  secret  matter  between  the 
principal  and  agent,  which  any  person 
proposing  to  purchase  is  not  to  know, 
at  least  until  the  bargain  is  completed. 


(fZ)  riemyng  v.  Hector.  2  M.  &  "W. 
178:  Todd  v.  Emly,  7  M.  &  W.  427  ; 
8  lb.  505  ;  East  India  Co.  v.  Hensley,  1 
Esp.  Ill;  Woodin  r.  Burford,  2  C.  & 
Mee.  391;'  Jordan  v.  Norton,  4  M.  &  W. 
155;  Sykes  v.  Giles,  5  M.  &  W.  645; 
Waters  v.  Brogden,  1  Y.  &  Jer.  457  ; 
Daniel  v.  Adams,  Ambler,  495. —  But 
there  is  a  material  distinction  between 
authority,  and  instructions  uncommuni- 
cated,  and  not  intended  to  be  communi- 
cated to  the  third  party  dealing  with  the 
agent.  Such  instructions  qualify  tiie 
liability  of  the  principal  neither  in  the 
case  of  a  general  agency  nor  of  a  par- 
ticular agency.  The  sound  rule  of  law 
is  set  forth  by  Parker,  C.  J.,  giving  the 
judgment  of  the  court  in  Hatch  v. 
Taylor,  10  N.  H.  538:  — "It  is,  we 
think,  apparent  enough,  that  all  which 
may  be  said  to  a  special  agent,  about 
the  mode  in  which  his  agency  is  to  be 
executed,  even  if  said  at  the  time  that 


the  authority  is  conferred,  or  the  agency  And  if  no  special  injunction  of  secrecy 

constituted,  cannot  be  regarded  as  part  was  made,  the  result  would  be  the  same; 

of  the  authority  itself,  or  as  a  qualifica-  for  from  the  nature  of  the  case,  such  an 

tion  or  limitation  upon  it.     There  may  instruction,  so  far  as  regards  the  mini- 

be,  at  all  times,  upon  the  constitution  of  mum  price,  must  be  intended  as  a  private 

a  special  agency,  and  there  often  is,  not  matter  between  the  principal  and  agent, 


only  an  authority  given  to  the  agent,  in 
virtue  of  which  he  is  to  do  the  act  pro- 
posed, but  also  certain  communications, 
addressed  to  the  private  car  of  the  agent, 
although  they  relate  to  the  manner  in 
which  the  authority  is  to  be  executed, 
and  arc  intended  as  a  guide  to  direct  its 
execution.  These  communications  may, 
to  a  certain  extent,  be  intended  to  limit 
the  action  of  the  agent;  that  is,  the  prin- 
cipal intends  and  expects  that  they  shall 
be  regarded  and  adhered  to,  in  the  exe- 
cution of  the  agency ;  and  should  the 
agent  depart  from  them,  he  would  violate 
the  instructions  given  him  by  the  princi- 
pal, at  the  time  when  he  was  constituted 
agent,  and  execute  the  act  he  was  ex- 
pected to  perform  in  a  case  in  which  the 
principal  did  not  intend  that  it  should 
be  done.  And  yet,  in  such  case  he  may 
luive  acted  entirely  within  the  scope  of 
the  authority  given  him,  and  the  princi- 
pal be  bound  by  his  acts.  Tliis  could 
not  be  so,  if  those  communications  were 


not  to  be  communicated  to  the  persons 
to  whom  he  proposed  to  make  a  sale, 
from  its  obvious  tendency  to  defeat  the 
attempt  to  obtain  a  greater  sum,  which 
was  the  special  duty  of  the  agent.  It 
will  not  do  to  say  that  the  agent  was  not 
authorized  to  sell,  unless  he  could  obtain 
that  price.  That  is  the  very  question, 
v.hcther  sucli  a  private  instruction  limits 

the  authority  to  sell."     545-547 

"No  man  is  at  liberty  to  send  another 
into  the  market,  to  buy  or  sell  for  him, 
as  his  agent,  with  secret  instructions  as 
to  the  manner  in  which  he  shall  execute 
his  agency,  Avhich  are  not  to  be  commu- 
nicated to  those  with  whom  he  is  to 
deal ;  and  then,  when  his  agent  has  devi- 
ated from  those  instructions,  to  say  that 
he  was  a  special  agent,  —  that  the  in- 
structions were  limitations  upon  his 
authority,  —  and  that  tiiose  with  whom 
he  dealt,  in  the  matter  of  his  agcnc}-, 
acted  at  tlicir  peril,  I'ccaase  they  were 
bound  to  inquire,  where  iiKpiiry  would 

[41] 


41 


THE   LAW   OP  CONTRACTS. 


[book  I. 


principal  is  bound,  (e)  provided  the  agent  acted  therein  within 
the  ordinary  and  usual  scope  of  the  business  he  was  author- 
ized to  transact,  and  the  party  dealing  with  the  agent  did  not 
know  that  he  exceeded  his  authority.  (/)  The  rule  being,  as 
to  the  public,  that  the  authority  of  a  general  agent  may  be 
regarded  by  them  as  measured  by  the  usual  extent  of  his 
general  employment,  (g)  The  obvious  reason  for  this  is,  that 
the  public  may  not  be  deceived  to  its  injury  by  previous  acts 


have  been  fruitless,  and  to  ascertain  that, 
of  which  they  were  not  to  have  know- 
ledge. It  would  render  dealing  with  a 
special  agent  a  matter  of  great  hazard. 
If  the  principal  deemed  the  bargain  a 
good  one,  the  secret  orders  would  con- 
tinue scaled  ;  but  if  his  opinion  was 
otherwise,  the  injunction  of  secrecy 
would  be  removed,  and  the  transaction 
avoided,  leaving  the  party  to  such 
remedy  as  he  might  enforce  against  the 
agent.  From  this  reasoning  we  deduce 
the  general  principle,  that  where  private 
instructions  are  given  to  a  special  agent, 
respecting  the  mode  and  manner  of  exe- 
cuting his  agency,  intended  to  be  kept 
secret,  and  not  communicated  to  those 
with  whom  he  may  deal,  such  instruc- 
tions are  not  to  be  regarded  as  limitations 
upon  his  authority ;  and  notwithstanding 
he  disregards  them,  his  act,  if  otherwise 
within  the  scope  of  his  agency,  will  be 
valid,  and  bind  his  employer."     548  -  9. 

{e)  Duke  of  Beaufort  v.  Neeld,  12 
CI.  &  Fin.  248,  273 ;  Nickson  v.  Brohan, 
10  Mod.  109  ;  Monk  v.  Clayton,  Molloy, 
B.  2,  Ch.  10,  §  27. 

(/)  Forman  r.  Walker,  4  Louis.  Ann. 
409.  The  authority  given  to  the  agent 
must  in  all  cases  be  strictly  pursued. 
Eobertson  v.  Ketchum,  11  Barb.  652. 
The  exception,  extending  the  principal's 
liability  in  favor  of  third  parties,  is  only 
made  where  such  third  parties  are  igno- 
rant that  restrictions  have  been  imposed 
upon  the  agent.  In  Attwood  v.  Mun- 
nings,  7  B.  &  Cress.  283,  Bayley,  J.,  said : 
—  "  This  was  an  action  upon  an  accept- 
ance importing  to  be  by  procuration, 
and  therefore,  any  person  taking  the 
bill  would  know  that  he  had  not  the  se- 
curity of  the  acceptor's  signature,  but  of 
the  party  professing  to  act  in  pursuance 
of  an  authority  fi'om  him.  A  person 
taking  such  a  bill,  ought  to  exercise  due 
caution,  for  he  must  take  it  upon  tlie 
credit  of  the  party  who  assumes  the  au- 
thority to  accept,  and  it  would  be  only 

[42] 


reasonable  prudence  to  require  the  pro- 
duction of  that  authority."  The  author- 
ity in  that  case  was  contained  in  two 
powers  of  attorney,  and  it  was  decided 
that,  taking  the  proper  construction  of 
them,  the  agent  had  exceeded  his  author- 
ity, and  so  the  principal  was  not  bound. 
This  case  is  confirmed  by  Withington 
V.  Herring,  5  Bing.  442.  Goods  were 
shipped  on  board  of  plaintiff's  ship,  and 
by  the  bills  of  lading,  which  were  in- 
dorsed to  the  defendants,  were  to  be  de- 
livered on  payment  oi  freight.  The  bills 
were  indorsed  by  the  defendants  to  their 
factors,  to  whom  the  goods  were  deli- 
vered, and  the  freight  charged.  Assump- 
sit was  brought  against  the  defendants 
on  the  bankruptcy  of  the  factors,  but 
was  not  sustained  on  the  ground  that 
authority  to  receive  the  goods  was  given 
only  on  immediate  payment  of  the 
freight.  Tobin  v.  Crawford,  5  M.  &  W. 
235.  And  see  Hogg  v.  Snaith,  1  Taunt. 
347 ;  Acey  v.  Fernie,  7  M.  &  W.  157  ; 
Esdaile  v.  La  Nauze,  1  Y.  &  ColL  394; 
Maanss  v.  Henderson,  1  East,  335  ;  Mur- 
ray V.  East  India  Co.  5  B.  &  Aid.  204 ; 
Gardner  v.  Baillie,  6  T.  K.  591  ;  with 
which  compare  Howard  v.  Baillie,  2  H. 
Bl.  618.  The  ruling  of  Heath,  J.,  in 
Hicks  V.  Hankin,  4  Esp.  114,  seems  to 
admit  of  question.  —  For  instances  where 
the  authority  of  a  general  agent  has  been 
circumscribed,  see  Odiorne  ?;.Maxcy,  13 
Mass.  178;  White  v.  Westport  Cotton 
Man.  Co.  1  Pick.  215  ;  Salem  Bank  v. 
Gloucester  Bank,  17  Mass.  1;  Wyman 
V.  Hallowell  &  Augusta  Bank,  14  Mass. 
58  ;  Kerns  v.  Piper,  4  Watts,  222  ;  Terry 
V.  Fargo,  10  Johns.  114;  Reynolds  v. 
Rowley,  4  Louis.  Ann.  409.  —  Except 
the  master  of  a  vessel  and  an  acceptor 
for  honor,  no  agent  can  borrow  money  on 
his  principal's  account  without  special 
authority.  Hawtavne  v.  Bourne,  7  !M. 
&  W.  595. 

i'j)  Pickering  v.  Busk,  15  East,  38; 
Whitehead  v.  Tuckett,  15  East,  400. 


CH.  III.]  AGENTS.  42 

which  the  agent  was  fully  authorized  to  do.  By  such  au- 
thority the  principal  does  as  it  were  proclaim  and  publicly 
declare  him  to  be  his  agent,  and  must  abide  the  responsibility 
of  so  doing.  It  would  not  be  right  for  the  principal  to  say  to 
one  who  dealt  with  his  general  agent ;  you  knew  that  he  was 
my  general  agent,  for  I  authorized  you  and  everybody  else 
to  believe  this,  but  in  this  particular  instance  I  had  revoked 
or  limited  the  authority,  and  the  revocation  or  limitation 
shall  affect  you  although  you  did  not  know  it.  But  a  princi- 
pal may  well  say  to  one  who  dealt  with  an  agent  for  a  par- 
ticular purpose,  it  was  your  business  first  to  ascertain  that 
he  was  my  agent,  and  then  to  ascertain  for  yourself  the  charac- 
ter and  extent  of  his  agency. 

Where  the  agency  is  implied  from  general  employment,  it 
may  survive  this  employment,  and  will  be  still  implied  in 
favor  of  those  who  knew  this  general  employment,  but  have 
not  had  notice  of  the  cessation  of  the  employment,  and  cannot 
be  supposed  to  have  knowledge  thereof,  (h)  Hence  the 
common  and  very  proper  practice  of  giving  notice  by  public 
advertisement  when  such  an  agency  is  revoked. 

SECTION  II. 
IN   WHAT  MANNER  AUTHORITY    MAY  BE    GIVEN    TO  AN  AGENT. 

An  agent,  generally,  may  be  appointed  by  parol,  and  so 
authorized  to  do  any  thing  which  does  not  require  him  to 
execute  a  deed  for  his  principal,  (i)  He  may  be  authorized 
by  parol  to  make  contracts  in  writing,  and  to  make  those 
which  are  not  binding  upon  his  principal,  unless  in  writing 
signed  by  him.  (j) 

(A)  V.  Harrison,  1 2  Mod.  346 ;  the  rale  of  the  common  law  is  adhered 

Monk  V.  Clayton,  Molloy,  B.  2,  Ch.  10,  to  with  strictness.     Gordon  v.  Bulkelej, 

§  27,  cited  per  cur.  10  Mod.  110;  Em-  14  S.  &  Rawle,331.   And  in  Banorgeer. 

mett  V.  Norton,  8  C.  &  Payne,  506.  Hovey,  5  Mass.  11,  it  was  held,  {Scicell, 

(i)  2  Kent's  Comm.  612.  The  re-  J.,  dissenting,)  that  a  sealed  instrument 
ceipt  of  an  authorized  agent  is  the  re-  executed  in  the  name  of  the  principal  by 
ccipt  of  the  principal.  Mackersy  v.  an  agent,  not  authorized  under  seal. 
Ramsays,  9  CI.  &  Fin.  818,  850. — A  could  not  be  admitted  in  evidence  in  an 
tender  made  to  an  authorized  agent  is  action  of  assi/m/5Si'<  against  the  principal, 
as  if  made  to  his  ])rincipal.  Moffat  v.  But  see  contra,  Cooper  v.  Rankin,  5  Bin- 
Parsons,  5  Taunt.  ;5(»7. — With  regard  ney,  613,  and  page  46  infra  note  (icw). 
to  the  execution  of  contracts  under  seal,        (j)  Shaw  v.  Nudd,  8  Pick.  9  ;  Ewiiig 

[43] 


43 


THE    LAW    OF   CONTRACTS. 


[cook  I. 


An  authority  is  presumed  or  raised  by  implication  of  law, 
on  the  ground  that  the  principal  has  justified  the  belief  that 
he  has  given  such  authority,  in  cases  where  he  has  employed 
a  person  in  his  regular  employment ;  [jj)  as  where  one  sends 
goods  to  an  auctioneer,  or  to  a  common  repository  room  for 
sale,  the  bailee  has  an  implied  authority  to  sell,  [k)  And 
such  presumptions  frequently  arise  in  the  case  of  a  wife  ;  (/) 
or  of  a  domestic  servant ;  {m)  or  of  a  son  who  has  been  per- 
mitted for  a  considerable  time  to  transact  a  particular  busi- 
ness for  the  father,  («)  as  to  sign  bills,  &c. ;  or  where  one  has 
been  repeatedly  employed  to  sign  for  another  policies  of  in- 
surance, (o) 

It  must  be  remembered,  however,  that  an  agent  employed 
for  a  special  purpose,  derives  from  this  no  general  authority 
from  his  principal,  [p)  Where  the  belief  of  the  authority  of 
an  agent  arises  only  from  previous  action  on  his  part  as  an 


V.  Tees,  1  Binney,  450 ;  Clinen  v. 
Ck)oke,  1  S.  &  Lef.  22  ;  Coles  v.  Treco- 
thick,  9  Ves.  234,  250.  And  a  parol 
ratification  is  quite  equivalent  to  an 
original  authority.  Maclean  v.  Dunn, 
4  Bing.  722.  —  But  by  an  express  pro- 
vision of  tlie  Statute  of  Frauds,  an 
agent,  to  grant  or  assign  a  term  for 
more  than  three  years,  or  an  estate  of 
freehold,  must  be  authorized  thereto  in 
writing.     29  Car.  2,  c.  3,  §  3. 

(jj)  Dows  V.  Greene,  16  Barb.  72; 
Lyell  V.  Sanbourn,  2  Mich.  109. 

{h)  Lord  Ellenborough,  Pickering  r. 
Busk,  15  East,  38. 

(/)  Prestwick  v.  Marshall,  7  Bing. 
5G5 ;  Huckman  v.  Fernie,  3  M.  &  W. 
505  ;  Att'y  Gen.  v.  Riddle,  2  C.  &  Jer. 
493;  Plimmcr  v.  Sells,  3  N.  &  Mann. 
422.  —  After  separation,  the  wife  is  still 
her  husband's  agent  for  the  procurement 
of  such  things  as  are  reasonable  and 
necessary  for  herself.  Emmett  v.  Nor- 
ton, 8  C.  &  Payne,  506.  So  where  the 
person  cohabited  with  is  only  a  mistress, 
and  known  to  be  in  fact  only  a  mistress, 
if  she  is  allowed  to  pass  ostensibly  as 
wife.     Ryan  v.  Sans,  12  Q.  B.  460. 

(m)  A  master  is  not  responsible  for  a 
contract  entered  into  by  a  servant  to 
whom  he  had  always  given  cash  for 
making  purchases.  Rusby  v.  Scarlett, 
5  Esp.  75.  So  witha?(_y  particular  agent 
who  obtains  on  credit  goods  which  the 

[44] 


principal  gave  him  money  to  purchase. 
Jjori.  Abiriger,  C.  B.,  Flemyngv.  Hector, 
2  M.  &  W,  181. 

[n)  Watkins  v.  Vince,  2  Stark.  368. 

(o)  Brockelbank  v.  Sugruc,  5  C.  & 
Payne,  21 ;  Haughton  v.  Ewbank,  4 
Camp.  88,  where  it  was  held  sufficient 
proof  of  an  agent's  authority  to  subscribe 
a  policy  of  insurance  for  an  insurer,  that 
the  insui'er  was  in  the  habit  of  paying 
losses  iipon  policies  so  subscribed  by 
him,  without  producing  the  power  of 
attorney  under  which  the  agent  testified 
that  he  acted.  —  An  authority  to  draw 
is  not  an  authority  to  indorse  ;  Robinson 
V.  Yarrow,  7  Taunt.  455 ;  yet  the  fact 
that  a  confidential  clerk  had  been  accus- 
tomed to  draw,  taken  in  connection  with 
the  fact  that  his  master  had  in  one  in- 
stance authorized  him  to  indorse,  and  on 
two  other  occasions  had  received  money 
obtained  by  his  indorsement,  is  evidence 
from  which  a  jury  may  infer  a  general 
authority  to  indorse.  Prescott  v.  Flinn, 
9  Bing.  "l  9. 

{p)  Reynell  v.  Lewis,  15  ]M.  &  W. 
517;  Dawson  r.  Morrison,  16  Law  J., 
C.  P.,  240 ;  Cox  v.  Midland  Railway 
Co.  3  Exch.  268  :  Rusby  r.  Scarlett,  5 
Esp.  75;  Burness!-.  Pennell,  2  House  of 
Lords  Cases,  519  ;  Kaye  v.  Brett.  5 
Exch.  269  ;  Thatcher  u.'Bauk  of  New 
York,  5  Sand.  121. 


CH.  III.]  AGENTS.  *44 

agent,  the  persons  so  treating  with  him  must  on  their  own 
responsibility  ascertain  the  nature  and  extent  of  his  previous 
•employment,  (q)  This  may  be  such  as  to  estop  the  princi- 
pal from  denying  his  authority  in  the  particular  transaction  ; 
but  if  not,  then  they  have  no  remedy,  unless  against  the  agent 
himself  who  misled  them,  (r) 


SECTION  in. 

SUBSEQUENT    CONFIRMATION. 

As  agency  may  be  presumed  from  repeated  acts  of  the 
agent,  adopted  and  confirmed  by  the  principal  previously  to 
the  contract  in  which  the  question  is  raised,  (s)  so  such 
agency  may  be  confirmed  and  established  by  a  subsequent 
ratification ;  the  com.mon  law  having  adopted  the  civil  law 
maxim,  "  omnis  ratihabitio  retrotrahitur  et  mandato  (eqiiipara- 
tur."  {I)  The  rule  may  be  stated  thus  :  where  any  one  con- 
tracts as  agent  without  naming  a  principal,  his  acts  enure  to 
the  benefit  of  the  party,  although  at  the  time  uncertain  or 
unknown,  for  whom  it  shall  turn  out  that  he  intended  to  act, 
provided  the  party  thus  entitled  to  be  principal  ratify  the  con- 
tract, {tt)     And,  generally,  if  the  principal  receive  and  hold 

{q)  Schimmelpennich  v.  Bayard,   1  {t)  18  Vin.  Abr.  iia</Aat/<i"o;  Lucena 

Peters,  264  ;  Parsons  v.  Armor,  3  Pc-  v.  Craufurd,  I  Taunt.  325  ;  Clark's  Ex- 

ters,  413  ;  Blane  v.  Proudfit,  3   Call,  ecutors   v.   Van  Kiemsdyk,  9   Cranch, 

207  ;  Kilgour  v.  Finlyson,  1  II.  Bl.  155,  158  ;  Fleckner  v.  U.  S.  Bank,  8  Wheat, 

where  a  power  given,  on  the  dissolution  363  ;   Bell  v.   Cunningham,   3   Peters, 

of  a  partnership,  to  one  of  the  partners  81  ;  Ilooe  v.  Oxley,  1  Wash.  (Va.)  19  ; 

to  receive  all  debts  owing  to,  and  to  Moss  v.  Eossie  Lead   Mining   Co.    5 

discharge  all  claims   against,  the  late  Hill,  (N.  Y.)  137;  Eogers  r.  Kneeland, 

partnership,  was  held  not  to  authorize  10  Wend.  218;  Marsh  v.  Keating,  1 

him  to  indorse  a  bill  of  exchange  in  the  Bing.  N.  C.  198  ;  Bigelow  v.  Dennison, 

partnership  name,  though  drawn  by  him  23  Verm.  565.  —  If  any  stranger,  in  the 

in  that  name,  and  accepted  by  a  debtor  name  of   the  mortgagor  or  his   heir, 

of  the  partnership  after  the  dissolution,  (without  his  consent  or  privity,)  tender 

ir)  Pourie  v.  Fraser,  2  Bay,  269.  the  money,  and  the  mortgagee  acccpteth 

(s)  Townsend  v.  Inglis,   Holt,  278 ;  it,  [which,  however,  he  is  not  hound  to 

Haughton  v.   Ewbank,   4   Camp.   88 ;  do,j  this  is  a  good  satisfaction,  and  the 

Barber  v.  Gingell,  3  Esp.   60.    There  mortgagor  or  his  heir,  agreeing  tliere- 

the  apparent  acceptor  of  a  bill  of  ex-  unto,  may  re-enter  into  the  land.     Co. 

change,  setting  up  as  a  defence  that  his  Litt.  206,  b. 

signature  had  been  forged,  it  was  held  [tt)  Wilson  v.  Tumman,  6  M.  &  G.  242. 

a  good  answer  that  the  defendant  had  "  llatiim  quis  habere  non  potest  quod  I'psius 

paid  other  bills   of  the  drawer  under  nomine  non  est  gestum."  See  also  Saunder- 

similar  circumstances.  son  v.  Griffiths,  5  B,  &  Cr.  909 ;  and 

[45] 


45 


THE    LAW    OF    CONTRACTS. 


[book  I. 


the  proceeds  or  beneficial  results  of  the  contract,  he  will  be 
estoppped  from  denying  an  original  authority,  or  a  ratifica- 


Eouth  V.  Thompson,  13  East,  274; 
Foster  v.  Bates,  12  M.  &  W.  226  ;  Hull 
V.  Pickersgill,  1  B.  &  Bing.  282.  This 
doctrine  has  frequent  application  in 
cases  of  marine  insurance.  See  Hage- 
dorn  I'.  Oiiverson,  2  M.  &  Sel.  485  :  Fin- 
ney V.  Fairhaven  Ins.  Co.  5  Metcalf,192. 
— A  notice  to  quit  given  by  an  unauthor- 
ized agent  cannot  be  made  good  by  an 
adoption  of  it  by  the  principal  after 
the  proper  time  for  giving  it,  the  agent 
having  acted  in  his  own  name  in  giving 
the  notice,  nor  it  seems,  if  he  acted  in 
the  name  of  the  principal.  Doe  v. 
Gold  win,  2  Queen's  Bench,  143  ;  Right 
V.  Cuthell,  5  East,  491.  — In  Bird  v. 
Brown,  14  Jurist,  132,  a  very  important 
distinction  was  taken  by  the  Court  of 
Exchequer.  A.,  a  merchant  at  Liver- 
pool, sent  orders  to  B.  at  New  York,  to 
purchase  certain  goods,  which  were 
shipped  accordingly  in  five  ships  and 
consigned  to  A.,  who,  after  the  receipt 
of  the  goods  by  one  of  them,  stopped 
payment  on  the  7th  April,  1846.  B., 
pursuant  to  directions  from  A.,  had 
drawn  bills  for  the  goods  partly  on  A. 
and  partly  on  C-,  with  whom  A.  had 
dealings.  D.,  a  merchant  at  Liverpool, 
and  who  also  had  a  house  of  business  at 
New  York,  purchased  there  several  of 
the  bills,  which  were  drawn  at  sixty 
days'  sight,  and  dated  some  on  the  28th, 
and  others  on  the  30th  March,  1846. 
On  the  8th  May  a  fiat  in  bankruptcy 
issued  against  A.,  and  his  assignees  were 
appointed.  The  other  four  vessels  ar- 
rived respectively  on  the  4th,  5th,  7th, 
and  10th  of  that  month,  and  immedi- 
ately on  the  arrival  of  each,  and  while 
the  transitus  of  the  goods  on  board  con- 
tinued, D.,  on  behalf  of  B.,  but  not  being 
his  agent,  and  without  any  authority 
from  him,  gave  notice  to  the  masters 
and  consignees,  claiming  to  stop  the 
goods  7)1  transitu.  On  the  11th  of  May 
the  assignees  made  a  formal  demand  of 
the  goods  still  on  board  and  undelivered, 
from  the  master  and  consignees  of  each 
of  the  four  ships,  at  the  same  time  ten- 
dering the  freight ;  but  they  refused  to 
deliver  them,  and  on  the  same  day,  de- 
livered the  whole  to  D.  On  the  next 
day  the  assignees  made  a  formal  demand 
of  the  goods  from  him,  but  he  refused  to 
deliver  them  up.  On  the  28th  April, 
B.  heard  at  New  York  that  A.  had 
[46] 


stopped  payment,  and  on  the  next  day 
he  executed  a  power  of  attorney  to  E., 
of  Liverpool,  authorizing  him  to  stop 
the  goods  in  transitu.  This  was  received 
by  E.  on  the  13th  May,  who  on  that 
day  adopted  and  confirmed  the  previous 
stoppage  by  D.  B.  afterwards  adopted 
and  ratified  all  which  had  been  done 
both  by  E.  and  D.  Held,  that  the  title 
of  A.  to  the  goods  was  not  devested  by 
the  above  stoppages  in  trajisitu,  and  con- 
sequently that  trover  for  them  was  main- 
tainable by  the  assignees  against  B. 
Pollock,  C.  B.,  delivering  the  judgment 
said  :  —  "  The  doctrine  ^omnis  ratihabitio 
retrotrahitur  et  mandato  cequiparatur^  is 
one  intelligible  in  principle,  and  easy  in 
its  application  when  applied  to  cases  of 
contract.  If  A.  B.,  unauthorized  by  me, 
makes  a  contract  on  my  behalf  with  J. 
S.,  which  I  afterwards  recognize  and 
adopt,  there  is  no  difiiculty  in  dealing 
with  it  as  having  been  originally  made 
by  my  authority.  J.  S.  entered  into  the 
contract  on  the  understanding  that  he 
was  dealing  with  me,  and  when  I  after- 
wards agree  to  admit  that  such  was  the 
case,  J.  S.  is  precisely  in  the  condition 
in  which  he  meant  to  be  ;  and  if  he  did 
not  believe  A.  B.  to  be  acting  for  me, 
his  condition  is  not  altered  by  my  adop- 
tion of  the  agency,  for  he  may  sue  A.  15. 
as  principal  at  his  option,  and  has  the 
same  equities  against  me  if  I  sue  that 
he  would  have  had  against  A.  B.  In 
cases  of  tort  there  is  more  difficulty.  If 
A.  B.,  professing  to  act  by  my  authority, 
does  that  which  prima  facie  amounts  to 
a  trespass,  and  I  afterwards  assent  to 
and  adopt  his  act,  there  he  is  treated  as 
having  from  the  beginning  acted  by  my 
authority,  and  I  become  a  trespasser, 
unless  I  can  justify  the  act  ■which  is 
to  be  deemed  as  having  been  done  by 
my  previous  sanction.  So  far  there  is 
no  difiiculty  in  applying  the  doctrine  of 
ratification  even  in  cases  of  tort  —  the 
party  ratifying  becomes  as  it  were  a  tres- 
passer by  estoppel — he  cannot  complain 
that  he  is  deemed  to  have  authorized  that 
which  he  admits  himself  to  have  author- 
ized. The  authorities,  however,  go  much 
further,  and  show  that  in  some  cases 
where  an  act. which  if  unauthorized  would 
amount  to  a  trespass,  has  been  done  in 
the  name  and  on  behalf  of  another,  and 
without  previous  authority,  there  a  sub- 


CH.   III.] 


AGENTS. 


46 


tion.  (w)  And  if  a  party  does  not  disavow  the  acts  of  his 
agent  as  soon  as  he  can  after  they  come  to  his  knowledge,  he 
makes  these  acts  his  own.  (v)  An  adoption  of  the  agency  in 
part,  adopts  it  in  the  whole,  because  a  principal  is  not  per- 
mitted to  accept  and  confirm  so  much  of  a  contract  made  by 


sequent  ratification  may  enable  the  party 
on  whose  behalf  the  act  was  done,  to 
take  advantage  of  it,  and  to  treat  it  as 
havinc;  been  done  by  his  direction.  But 
this  doctrine  must  be  taken  with  the 
qualification  that  the  act  of  ratification 
must  take  place  at  a  time,  and  under 
circumstances,  when  the  ratifying  party 
might  have  himself  lawfully  done  the 
act  which  he  ratifies.  Thus  in  Lord 
Audltifs  case,  a  fine  witli  proclamations 
was  levied  of  certain  land,  and  a  stranger 
"within  five  years  afterwards,  in  the  name 
of  him  who  had  right,  entered  to  avoid 
the  fine;  after  the  five  years,  and  not 
before,  the  party  who  had  the  right  to 
the  land  ratified  and  confirmed  the  act 
of  the  stranger;  this  was  held  to  be  in- 
operative, though  such  ratification  within 
the  five  years  would  probably  have  been 
good.  Now  the  principle  of  this  case, 
which  is  reported  in  many  books,  Cro. 
Eliz.  561  ;  Moore,  457,  pi.  630  ;  Poph. 
108,  pi.  2.  and  is  cited  with  approbation 
by  Lord  Coix  in  Margaret  I^odcjer\-  case, 
(9  Co.  106.  a,)  appears  to  us  to  govern 
the  present.  There  the  entry  to  be  good 
must  have  been  made  within  the  five 
years;  it  was  made  within  that  time  but 
till  ratified  it  was  merely  the  act  of  a 
stranger,  and  so  had  no  operation  against 
the  fine;  by  the  ratification  it  became 
the  act  of  the  party  in  whose  name  it 
was  made,  but  that  was  not  until  after 
the  five  years  —  he  could  not  be  deemed 
to  have  made  an  entry  till  he  ratified  the 
previous  entry  —  and  he  did  not  ratify 
until  it  was  too  late  to  do  so.  In  the 
present  case  the  stoppage  could  only  be 
made  during  the  transitus  ;  during  that 
period  the  defendants,  without  authority 
from  lUins,  made  the  stoppage.  After 
the  transitus  was  ended,  but  not  before, 
lUins  ratified  what  the  defendants  had 
done ;  from  that  time  the  stoppage  was 
the  act  of  Illins.  But  it  was  then  too 
late  for  him  to  stop ;  the  goods  had 
already  become  the  property  of  the 
plaintiffs,  free  from  all  right  of  stoppage. 
We  are  therefore  of  opinion  that  there 
must  be  judgment  fur  the  plaintiffs."  — 


It  is  somewhat  remarkable,  in  view  of 
the  present  state  of  the  law,  that  it  was 
at  one  time  strenuously  contended  that 
the  doctrine  of  ratification  reached  less 
broadly  m  contract  than  in  tori ;  and  that 
although  a  principal  unknown  at  the 
time  could  afterwards  adopt  the  act  of 
the  agent  in  the  latter  case,  he  could  not 
in  the  former.  See  Hagedorn  v.  Oliver- 
son,  2  M.  &  Sel.  485,  and  per  Park,  J., 
in  Hull  V.  Pickersgill,  1  B.  &  Bing.  287. 

(u)  Holt,  C.  J.,  in  Bolton  v.  Hillers- 
den,  1  Ld.  Raym.  224,  225  ;  Thorold  v. 
Smith,  11  Mod.  72;  Byrne  v.  Doughty, 
13  Geo.  46 ;  Johnson  v.  Smith,  21  Conn. 
627.  The  principal,  wlicn  he  has  once 
affirmed  a  contract  made  by  the  agent 
without  authority,  and  even  fraudulent- 
ly, cannot  afterwards  disaiSrm  it ;  bring- 
ing assumpsit  against  the  third  party  is 
an  afiirmance.  Smith  v.  Hodson,  4  T. 
R.  211,  217.  Yet  if  the  party,  alleged 
to  be  principal,  after  denying  that  the 
agent  had  authority  from  him  to  pur- 
chase goods,  receive  them  from  the 
agent  in  payment  of  a  debt  due  from 
the  latter,  the  original  seller  (w'hatever 
other  remedy  he  may  have)  cannot  bold 
such  supposed  principal  liable  as  having 
ratified  the  purchase  made  by  the  agent. 
Hastings  v.  Bangor  House,  18  Maine  R. 
436.  —  The  ratification  of  an  act  of  an 
agent,  in  order  to  bind  the  principal, 
must  be  with  a  full  knowledge  of  all  the 
material  facts.  Freeman  v.  Kosher, 
13  Q.  B.  780  ;  Owings  v.  Hull,  9  Peters, 
607  ;  Penn.,  Del.,  and  Md.  Steam  Nav. 
Co.  V.  Dandridge,  8  G.  &  Johns.  248, 
323  ;  Hays  v.  Stone,  7  Hill,  N.  Y.  128  ; 
Copeland  v.  Mercantile  Ins.  Co..  6  Pick. 
198.  —  Conduct  which  would  be  suffi- 
cient to  charge  an  individual  as  principal, 
may  not  amount  to  ratification  in  the 
case  of  a  State.     Delafield  v.  Illinois, 

26  Wend.  192. 

(v)  Bredin  v.  Dubarry,  14  S.  &  Rawlc, 

27  ;  Veazie  v.  Williams,  8  Howard,  S. 
Ct.  134;  Benedict  v.  Smith,  10  Paige, 
126;  McCuUoch  v.  McKee.  16  Pcnn., 
289. 

[47] 


47 


THE   LAW   OF   CONTRACTS. 


[book  I. 


one  purporting  to  be  his  agent,  as  he  shall  think  beneficial  to 
himself,  and  reject  the  remainder,  (iv) 

Where  the  party  who  undertakes  to  act  as  agent  has 
affixed  a  seal  to  an  instrument  which  did  not  need  a  seal,  a 
parol  ratification  will  make  the  instrument  obligatory  upon 
the  principal  as  a  simple  contract,  (ww)  And  where  one 
acting  as  agent  has,  without  authority,  entered  into  a  con- 
tract in  writing  required  by  the  Statute  of  Frauds  to  be  in 
writing,  the  principal  is  bound  by  an  oral  ratification,  (ivv) 
But  it  has  been  held,  that  a  parol  ratification  cannot  make 
that  the  deed  of  the  principal  which  originally  did  not  bind 
him   from  the  agent's  want  of  an  authority  under  seal,  (wx) 

The  ratification  of  the  tort  of  an  agent  does  not  in  general 
relieve  him  from  liability  ;  although,  as  in  cases  of  contract, 
a  liability  is  thereby  incurred  by  the  principal,  (wy) 


(w)  Wilson  V.  Poulter,  2  Stra.  859 ; 
Smith  V.  Hodson,4  T.  K.  211  ;  Hovil  v. 
Pack,  7  East,  164  ;  Brewer  v.  Sparrow, 
7  B.  &  Cress.  310;  Wright  v.  Crookes, 
1  Scott,  N.  K.  685  ;  Hovey  v.  Blanchard, 
13  N.  H.  145 ;  Farmer's  Loan  Co.  v. 
Walworth,  1  Comst.  447  ;  N.  E.  Marine 
Ins.  Co.  V.  De  Wolf,  8  Pick.  56;  Culver 
r.  Ashley,  19  Pick.  300  ;  Bigclow  v. 
Dennison,  23  Verm.  565 ;  Hodnett  v. 
Tatum,  9  Geo.  70 ;  Elam  v.  Carruth,  2 
Louis.  Ann.  275  ;  Cook  v.  Bank  of  Lou- 
isiana, Ibid.  324.  It  seems  the  delivery 
of  money  to  the  agent  for  payment  by 
him  to  a  person  with  whom  the  agent 
had  contracted  without  authority,  is  such 
a  ratification,  (though  the  delivery  of  the 
money  be  not  made  known  to  the  other 
contracting  party,)  that  if  the  agent  em- 
bezzle the  money,  the  principal  is  still 
bound  by  the  contract.  Ld.  Ellenborough, 
in  Rusby  v.  Scarlett,  5  Esp.  77.  —  In 
Burn  V.  Morris,  4  Tyr.  485,  trover  was 
maintained  against  the  finder  of  a  bank- 
note for  £20  by  the  owner.  The  de- 
fendant got  the  note  changed  at  the 
Bank  of  England,  and  afterwards,  being 
taken  before  the  Lord  Mayor,  £7  (being 
part  of  the  proceeds  of  the  note)  were 
found  upon  her  and  were  restored  to  the 
plaintiff.  It  was  contended  that  this 
receipt  of  the  £7  was  a  ratification  of 
tlie  defendant's  act,  and  precluded  the 
plaintiff  from  treating  it  as  a  conversion ; 
and  Brewer  v.  Sparrow,  7  B.  &  Cress. 
310,  was  cited.  But  Lord  Lyndhurst, 
C.  B.,  said,  "la  that  case  the  whole 

[48] 


proceeds  of  the  sale  were  taken ;  that  is 
an  adoption  of  the  act :  here  the  receipt 
of  the  £7  does  not  ratify  the  act  of  the 
parties,  it  only  goes  in  diminution  of 
damages." — If  the  principal,  upon  being 
informed  of  what  has  been  done,  by  one 
acting  as  his  agent,  does  not  give  notice 
of  dissent  in  a  reasonable  time,  his 
assent  shall  be  presumed.  Cairnes  v. 
Bleecker,  12  Johns.  300  :  Richmond 
Manufact.  Co.  v.  Stark,  4  'Mason,  296. 

(wiv)  Hunter  v.  Parker,  7  M.  &  W. 
322 ;  Despatch  Line  v.  Bellamy  Manf. 
Co.  12  N.  H.  205 ;  Worrall  v.  Munn,  1 
Seld.  229  ;  Randall  v.  Van  Vechtcn,  19 
Johns.  61  ;  Bank  of  Metropolis  v. 
Guttschlick,  14  Pet.  29  ;  Mitchell  v. 
St.  Andrew's  Bay  Land  Co.  4  Flor. 
200. 

(wv)  Maclean  v.  Dunn,  4  Bing.  722. 

{wx)  Steiglitz  v.  E^ginton,  Holt,  N. 
P.  C.  141,  per  Gihhs,  C.  J.;  Stetson  v. 
Patten,  2  Greenl.  358;  Despatch  Line 
V.  Bellamy  IManf.  Co.  12  N.  H.  205; 
Parke,  B.,  Hunter  v.  Parker  7  INI.  &  W. 
343.  —  In  Blood  v.  Goodrich  9  Wend. 
77,  Savage,  C.  J.,  advanced  the  opinion 
that  a  ratification  in  writing  might 
suffice. 

{wy)  It  appears  indeed  to  be  said  in 
2  Greenl.  Evid.  ^  68,  that  a  man  cannot 
become  a  trespasser  by  ratification.  "  If 
the  act  of  the  agent  was  in  itself  unlaw- 
ful, and  directly  injurious  to  another,  no 
subsequent  ratification  will  operate  to 
make  the  principal  a  trespasser ;  for  an 
authority  to  commit  a  trespass  does  not 


CH.   III.] 


AGENTS. 


47 


SECTION  IV. 


SIGNATUKE    BY  AN   AGENT. 


The  manner  in  which  an  agent  should  sign  an  instrument 
for  his  principal  has  given  rise  to  some  controversy.     There 


result  bj^  mere  implication  of  law.    The 
master  is  liable  in  trespass  for  the  act  of 
his  servant,  only  in  consequence  of  his 
previous  express  command."    But,  as  it 
seems,  the   cases  recognize  no  greater 
difficulty  in  becoming   a  trespasser  by 
ratifying  the  trespass  of  the  agent,  than 
in  becoming  liable  ex  contractu  by  ratify- 
ing the  agent's  contract.    In  neither  case 
can  the  principal  be  made  liable,  unless 
the  agent,  at  the  time  of  the  tort  or  the 
contract,  undertook  to  act  ybr  Aim  ;  but 
if  the  agent,  though  without  any  prece- 
dent authority,  did  undertake  to  act  for 
the  principal^  and  he  subsequently  ratify, 
"  in  that  case,"  in  the  language  of  J'in- 
dal,  C.  J.,  Wilson  v.  Tumman,  6  M.  & 
G.  242,  "  the  principal  is  bound  by  the 
act,  whether  it  be  for  his  detriment  or 
bis  advantage,  and  luhetlier  it  be  founded 
on  a  tort  or  a  contract,  to  the  same  extent 
as,  by,  and  with  all  the   consequences 
which  follow  from,  the  same  act  done  by 
his  previous  authority."  Wilson  i\  Tum- 
man was  an  action  of  trespass  against 
T.,  who   had    ratified   the   trespass   of 
agents  ;    but   they   in    committing   the 
trespass  had  not  acted  for  T.,  but  for 
another  person,  and  on  this  account  it 
was  held  that  T.  was   not  liable.      In 
Barker  v.  Braham,  3  Wils.  376,  DeGrey, 
C.  J.,  said  explicitly,  "  one  assenting  to 
a  trespass  after  it  is  done  is  a  trespasser." 
In  Co.  Litt.  180,  b,  it  is  stated,  that  "if 
A.  disseise  one  to  the  use  of  B.,  who 
knoweth  not  of  it,  and  B.  assent  to  it,  in 
this   case,   till   the  agreement,   A.  was 
tenant  of  the  land,  and  after  the  agree- 
ment B.  is  tenant  of  the  land,  but  both 
of  them  be  disseisors ;  for  omnis  ratihabi- 
tio  retrotrahitur  et  mandato  aguiparatur." 
And  where  a  bailiff  seized  a  beast  for  a 
heriot  where  none  was  due,  and  the  lord 
agreed  to  the  seizure  and  took  the  beast, 
the  whole  court  agreed  that  the  lord  was 
liable  in  trespass,  and  the  only  question 
made  was  whether  the  plainliff  might 
elect  to  bring  trover  instead.     Bishop  v. 
VOL.    I.  5 


Montague,  Cro.  Eliz.  824.  See  alsO 
Wilson  V.  Barker,  4  B.  &  Ad.  614,  616, 
where  4  Inst.  317,  is  cited  by  Parle,  J. ; 
Hull  V.  Pickcrsgill,  1  B.  &  Bing.  282, 
286 ;  Pollock,  C.  B.,  Bird  v.  Brown,  14 
Jur.  134,  cited  supra  p.  45,  note.  This 
matter  of  trespass  by  ratification  was 
very  thoroughly  discussed,  and  the  law 
respecting  it  settled  substantially  as  it 
has  ever  since  remained,  so  early  as  38 
Ed.  3,  18;  Lib.  Ass.  223,  pi.  9,  S.  C; 
and  see  the  resolution  of  the  court  stated 
Bro.  Abr.  Ejectione  Custodie,  pi.  5,  8, 
Trespass,  pi.  113,  256.  —  As  to  trespass 
with  battery,  or  a  trespass  constituting 
a  statutory  offence,  see  Bishop  v.  Monta- 
gue, Cro.  Eliz.  824  ;  Hawk.  P.  C,  B.  2, 
ch.  29,  §  4  ;  but  with  this  last  compare 
Goulds.  42  ;  Moore,  53  pi.  155 ;  and  Co. 
Litt.  180,  b,  note  (4.) 

An  interesting  and  important  question 
arose  in  Buron  v.  Denman,2  Exch.  167. 
The  defendant,  a  naval  commander, 
stationed  on  the  coast  of  Africa,  with 
instructions  for  the  suppression  of  the 
slave  trade,  went  beyond  his  instruc- 
tions in  firing  the  barracoons  of  the 
plaintiff,  a  Spanish  subject,  and  carry- 
ing off  certain  slaves  of  which  he  was 
there  lawfully  possessed.  The  Lords  of 
the  Admiralty  and  the  Secretaries  of 
State  for  the  foreign  and  colonial  de- 
partments, respectively,  by  letter,  adopt- 
ed and  ratified  what  the  defendant  had 
done.  Held,  by  Alderson,  Piatt,  and 
Holfe,  BB.,  that  such  ratification  was 
equivalent  to  a  prior  command,  and 
rendered  what  otherwise  would  have 
been  a  trespass  on  the  part  of  the  de- 
fendant, an  act  of  state  for  which  the 
crown  was  alone  responsible.  Parke, 
B.,  doubted :  —  "I  do  not  say  that  I  dis- 
sent ;  but  I  express  my  concurrence 
with  some  doubt,  because,  on  rcfiection, 
there  ajipears  to  me  a  considerable  dis- 
tinction between  the  present  and  the  or- 
dinary case  of  ratification  by  subsequent 
authority  between  private  individuals. 
[49] 


48*  THE   LAW    OF    CONTRACTS.  [BOOK  I. 

has  been  a  tendency  to  discriminate  in  this  respect.  To 
say,  for  instance,  that  if  A.  signs  "  A.  for  B.,"  this  is  the 
signature  of  A.,  and  he  is  the  contracting  party,  although  he 
makes  the  contract  at  the  instance  and  for  the  benefit  of  B. 
But  if  he  signs  "  B.  by  A.,"  then  it  is  the  contract  of  B.  made 
by  him  through  his  instrument  A.  In  the  first  case  A.  is  the 
principal;  in  the  second  B.  is  the  principal  and  A.  his  agent. 
But  the  recent  cases,  and  the  best  reasons,  are  for  determin- 
ing in  each  instance,  and  however  the  signature  is  made,  from 
the  facts  and  the  evidence,  that  a  party  is  an  agent  or  a  prin- 
cipal, in  accordance  with  the  intention  of  the  parties  to  the 
contract,  [x)  But  it  is  still  requisite  that  the  name  of  the 
principal  appear  in  the  signature  of  a  deed,  [xx)  It  has  been 
regarded  as  an  established  *principle,  that  no  person  is  held  to 
be  the  agent  of  another  in  making  a  written  contract,  unless 
his  agency  is  stated  in  the  instrument  itself,  and  he  therein 
stipulates  for  his  principal  by  name.  (?/)  In  Stackpole  v. 
Arnold,  (z)  Chief  Justice  Parker  considers  this  rule  as  appli- 
cable to  every  written  contract.  But  the  rule  is  qualified  -if 
not  contradicted  by  authorities  of  much  weight,  (a)  and  we  do 

If  an  individual  ratifies  an  act  done  on  Hagadorn,  1  Duer,  (N.  Y.)  89,  an  auc- 
his  behalf,  the  nature  of  the  act  remains  tioneer  had  signed  his  own  name  to  a 
unchanged,  it  is  still  a  mere  trespass,  receipt  for  the  deposit  made  upon  the 
and  the  party  injured  has  his  option  to  purchase  of  real  estate  sold  the  plaintiff 
sue  either;  if  the  crown  ratifies  an  act,  at  auction  "for  which  a  good  and  suffi- 
the  character  of  the  act  becomes  altered,  cient  title  is  to  be  given  by  J.  H.  and 
for  the  ratification  does  not  give  the  otiiers ; "  it  was  held,  that  this  was  a 
party  injured  the  double  option  of  bring-  sufficient  signing  by  J.  11.  within  the 
ing  his  action  against  the  agent  who  statute  of  frauds,  although  his  signature 
committed  the  trespass  or  the  principal  did  not  appear  in  the  subscription, 
who  ratified  it,  but  a  remedy  against  the  (xx)  Bac.  Abr.  Leases,  I.  10;  Clarke 
crown  only  (such  as  it  is,)  and  actually  v.  Courtney,  5  Peters,  319,  350.  See 
exempts  from  all  liability  the  person  Beckham  r.  Drake,  9  M.  &  W.  79. 
who  commits  the  trespass."  (i/)  Long  v.  Colburn,  11  Mass.  97; 
(.r)  See  Mechanics'  Bank  v.  Bank  of  Magill  v.  Hinsdale,  6  Connect.  464  ; 
Columbia,  5  Wheat.  326,  337  ;  Long  v.  Hancock  v.  Fairfield,  30  Maine,  299. 
Colburn,  11  Mass.  97;  Abbey  v.  Chase,  (z)  11  Mass.  27. 
6  Cush.  54  ;  Sheldon  v.  Kendall,  7  Cush.  (a)  The  rule,  first  advanced,  it  is  be- 
217;  Wilks  v.  Back,  2  East,  142  ;  Wil-  lieved,  by  Mr.  Smith,  (2  Lead.  Cases, 
burn  V.  Larkin,  3  Blackf.  55 ;  Hunter  Thomson  v.  Davenport,  note,)  seems  to 
V.  Miller,  6  B.  Mon.  612;  Whitehead  v.  be  adopted  by  the  English  Courts.  That 
Reddick,  12  Ire.  L.  95  ;  McCall  v.  Clay-  rule  is  that  parol  evidence  is  always  ad- 
ton,  1  Busbee's  Law,  (N.  C.)  422;  Syd-  missible  to  charge  the  unnamed  princi- 
nor  V.  Hurd,  8  Tex.  98;  Johnson  v.  pal,  though  never  to  <//.';c//a?-^e  the  actual 
Smith,  21  Conn.  627  ;  Rogers  i'.  March,  signer.  Humble  r.  Hunter,  12  Queen's 
33  Maine,  106;  Southern  Ins.  Co.  v.  Bench,  310  ;  Higgins  i-.  Senior,  8  M.  & 
Gray,  3  Florida,  262 ;  Hicks  v.  Hinde,  W.  834  ;  Trueman  i'.  Loder,  1 1  Ad.  & 
9  Barb.  528.  But  see  Moss  v.  Living-  El.  594.  — In  Beckham  v.  Drake,  9  M. 
ston.  4  Corns.  208.  In  Pincknev  i-.  &  W.  79,  where  it  was  decided  that  a 
[50] 


CH.  III.]  AGENTS.  48 

not  regard  it  as  of  great  force  except  in  cases  of  sealed  in- 


partner  might  be  held  upon  a  written 
contract,  signed  by  his  copartners,  but 
in  which  his  name  did  not  appear,  Lord 
Abinger,  C.B.,  and  Parke,  B.,  took  occa- 
sion to  consider  the  case  upon  the  prin- 
ciples of  Agency.  They  admitted  that 
in  the  case  of  a  bill  of  exchange  or  pro- 
missory note,  none  but  the  parties  named 
in  the  instrument  by  their  name  or  firm, 
can  be  made  liable  to  an  action  upon  it, 
but  were  of  opinion  that  all  other  writ- 
ten contracts,  not  under  seal,  stand  upon 
the  same  footing  with  regard  to  the  par- 
tics  who  may  be  sued  upon  them,  as 
contracts  not  written.  The  weight  of 
American  authority  is  as  yet  opposed  to 
the  admission  of  parol  evidence  to  charge 
an  unnamed  party.  Many  of  the  cases 
in  which  this  broad  doctrine  was  laid 
down  by  our  courts,  were  cases  of  mer- 
cantile paper,  yet  the  decisions  evidently 
were  not  rested  upon  the  peculiar  cha- 
racter of  this  class  of  instruments. 
Whether  American  courts  will  be  in- 
clined hereafter  to  follow  the  English 
judges,  and  draw  a  line  of  distinction 
which  shall  leave  ordinary  written  con- 
tracts open  to  the  admission  of  new 
parties,  remains  to  be  seen.  It  is  certain, 
however,  that  considerations  deserving 
great  attention  may  be  urged  against  the 
admissibility  of  parol  evidence  to  charge 
with  liability  upon  a  written  contract  a 
party  not  referred  to  in  it.  See  Long 
i\  Colburn,  11  Mass.  97;  Stackpole  y. 
Arnold,  II  Mass.  27  ;  Bradiee  r. Boston 
Glass  Co.  16  Pick.  350  ;  Savage  v.  Rix, 
9  New  Hamp.  263 ;  Minard  v.  Mead,  7 
Wend.  68;  Spencer  v.  Field,  10  Wend. 
87 ;  United  States  v.  Parmele,  Paine, 
C.  C.  252.  In  Finney  v.  Bedford  Com- 
mercial Ins.  Co.,  8  Mete.  348,  it  was 
held,  that  when  a  part-owner  of  a  vessel 
or  its  outfits  effects  insurance  thereon  in 
his  own  name  only,  and  nothing  in  the 
policy  shows  that  the  interest  of  any 
other  person  is  secured  thereby,  an 
action  on  the  policy  cannot  be  main- 
tained in  the  names  of  all  the  owners, 
upon  parol  evidence  that  such  part- 
owner  was  their  agent  for  procuring 
insurance,  and  that  his  agency  and  their 
ownership  were  known  to  the  under- 
writers, and  that  the  underwriters  agreed 
to  insure  for  them  all,  and  that  it  was 
the  intention  of  all  the  parties,  in 
making  the  policy,  to  cover  the  interest 
of  all  the  owners.    And  with  this  recent 


case  agrees  the  decision  of  the  Supreme 
Court  in  Graves  v.  Boston  Mar.  Ins. 
Co.,  2  Cranch,  419,  439.  But  in  Hun- 
tingdon V.  Knox,  7  Cush.  371,  which 
was  an  action  by  the  plaintiff  to  recover 
the  price  of  certain  bark  sold  and  deli- 
vered to  the  defendant  under  a  contract 
in  writing,  by  which  one  Geo.  H.  Hun- 
tingdon acknowledged  to  have  received 
of  the  defendant  a  partial  payment  of 
$25,  and  in  consideration  thereof,  agreed 
to  deliver  the  defendant  the  bark  in 
question,  it  was  decided  that  the  plain- 
tiff, Mehitahel  Huntingdon,  might  show 
by  parol  evidence  that  the  contract  was 
made  by  Geo.  H.  Huntingdon  on  her 
account,  and  that  the  bark  delivered 
was  her  property,  and  that  she  was  en- 
titled to  recover  on  the  contract.  C.  J. 
Shaiv  relies  upon  the  case  of  Higgins  v. 
Senior,  and  states  the  principle  broadly 
thus  ;  "  where  a  contract  is  made  for 
the  benefit  of  one  not  named,  though  in 
writing,  the  latter  may  sue  on  the  con- 
tract jointly  with  others  or  alone,  ac- 
cording to  the  interest.  The  rights  and 
liabilities  of  a  principal  upon  a  written 
instrument  executed  by  his  agent  do  not 
depend  upon  the  fact  of  the  agency  ap- 
pearing on  the  instrument  itself,  but 
upon  tiie  facts,  first,  that  the  act  is  done 
in  the  exercise,  and  second,  within  the 
limits  of  the  powers  delegated  :  and 
these  are  necessarily  inquirable  into  by 
evidence."  Considerable  stress  is  how- 
ever laid  upon  the  fact  that  tliis  action 
was  not  brought  upon  the  written  con- 
tract itself,  but  for  the  price  of  goods 
sold  by  the  agent,  from  which  the  pro- 
mise to  pay  implied  by  law,  altliough 
prima  facie  to  the  agent,  might  be  con- 
trolled by  parol  evidence  that  the  con- 
tract was  for  the  sale  of  property  belong- 
ing to  the  principal  and  sold  by  her 
through  her  agent.  Upon  this  distinc- 
tion this  case  may  be  reconciled  with 
Finney  y.  Bedford  Commercial  Ins.  Co., 
which  was  not,  however,  alluded  to  in 
the  case.  Newcomb  v.  Clark,  1  Denio, 
226,  was  an  action  by  C.  upon  an  agree- 
ment in  writing  with  P.,  who,  it  was  in 
proof,  was  C.'s  agent.  Held,  that  an 
action  upon  an  express  contract,  (not 
being  a  negotiable  instrument,)  must  be 
brought  in  the  name  of  the  party  with 
whom  it  was  made  ;  and  it  is  not  com- 
petent to  show  by  parol  that  the  pro- 
misee was  the  agent  of  another  person 

[51] 


49* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


struments.  (b)  Indeed,  Chief  *Justice  Parker,  in  the  later 
case  of  New  England  Marine  Ins.  Co.  v.  De  Wolf,  (c)  seems 
to  confine  it  to  these  cases. 


SECTION.  V. 

DURATION  AND  EXTENT  OF  AUTHORITY. 

Where  there  is  an  authority  expressly  given  or  implied  by 
law,  it  is  important  to  determine  its  extent,  scope,  and  dura- 
tion.    Where  a  principal  has  held  one  out  as  his  general 


for  the  purpose  of  enabling  such  person 
to  maintain  an  action.  And  in  Fenly 
V.  Stewart,  5  Sandf.  101,  which  was  an 
action  of  assumpsit  to  charge  the  de- 
fendants as  principals  upon  a  contract 
•with  A.  W.  Otis  &  Co.,  to  deliver 
25,000  bushels  of  oats  to  the  plaintiffs, 
and  in  which  the  Messrs.  Otis  were  in- 
troduced, and  testified  that  at  the  time 
they  signed  the  written  agreement  for 
the  sale  and  delivery  of  the  oats  in  their 
own  name  they  were  the  agents  of  the 
defendants  ;  it  was  decided  that  the 
plaintiffs  could  not  recover,  and  the 
court,  denying  the  dictum  of  Baron 
Parke,  in  tlie  case  of  Higgins  v.  Senior, 
that  it  is  competent  by  parol  proof  to 
charge  a  party  upon  a  contract  in 
writing  made  by  another  person  in  his 
own  name,  stated  the  rule  to  be,  "  that 
where  a  contract  is  reduced  to  writing, 
whether  in  compliance  with  the  requisi- 
tions of  the  statute  of  frauds  or  not,  and 
it  is  necessary  to  sue  upon  the  writing 
itself,  there  you  cannot  go  out  of  the 
writing,  or  contradict  or  alter  it  by  parol 
proof,  and  consequently  cannot  recover 
against  a  party  not  named  in  the  writ- 
ing ;  but  where  the  contract  of  sale  has 
been  executed  so  that  an  action  may  be 
maintained  for  the  price  of  the  goods 
irrespective  of  the  writing,  there  the 
party  who  has  had  the  benefit  of  the 
sale  may  be  held  liable,  unless  the 
vendor,  knowing  who  the  principal  is, 
has  elected  to  consider  the  agent  his 
debtor."  The  true  principle  upon  which 
this  seeming  contrariety  of  opinion  may 
be  reconciled,  would  appear  to  be  that 
laid  down  in  this  case  of  Fenly  v.  Stew- 
art, and  may  be  stated  thus ;  where  a 

[52] 


contract  is  reduced  to  writing,  and  an 
action  is  brought  upon  the  writing  itself, 
no  other  persons  can  be  made  parties 
than  those  named  in  the  instrument,  but 
when  a  right  of  action  exists  independ- 
ent of  the  writing,  which  is  merely  offered 
as  evidence  tending  among  other  things, 
to  establish  that  right,  then  the  party 
having  the  legal  interest  or  liability,  and 
for  whom  the  contract  was  actually 
made,  may  sue  or  be  sued,  although  not 
named  in  the  writing.  But  Hubbert  v. 
Borden,  G  Whart.  79 ;  Violett  v.  Powell, 
10  B.  Mon.  347 ;  Brooks  v.  Minturn,  1 
Gala.  481 ;  and  Cothayu.  Fennell,  10  B. 
&  Cress.  671,  are  authorities  to  show 
that  an  unnamed  principal  may  come  in 
to  take  the  benejit  of  a  written  contract 
with  an  agent,  who  acted  in  his  own 
name. 

(b)  Evans  v.  Wells,  22  Wend.  324 ; 
Pinckney  v.  Hagadorn,  1  Duer.  (N.  Y.) 
89 ;  Andrews  v.  Estes,  2  Fairfield,  267. 
The  undisclosed  principal,  however,  can 
never  come  in  and  take  advantage  of  a 
written  contract  entered  into  by  his  agent 
in  a  case  where  the  latter  has  distinctly 
described  himself  in  the  writing  as  ;)n«a- 
pcd.  Lucas  V.  De  La  Cour,  1  M.  &  Sel. 
249 ;  2  Greenl.  Evid.  §  281.  In  Humble 
V.  Hunter,  12  Queen's  Bench,  310, 
which  was  an  action  of  assumpsit  on  a 
charter-party  executed,  not  by  the 
plaintiff,  but  by  a  third  person,  who  in 
the  contract  described  himself  as 
"  owner "  of  the  ship,  it  was  held,  that 
evidence  was  not  admissible  to  show 
that  such  person  was  the  plaintiff's 
agent. 

(c)  8  Pick.  56  ;  and  see  Northampton 
Bank  v.  Pepoon,  11  Mass.  288,  292. 


CH.  III.] 


AGENTS. 


*50 


agent,  or  authorized  parties  so  to  regard  him  by  continued 
acquiescence  and  confirmation,  we  have  said  that  the  princi- 
pal cannot  limit  or  qualify  his  own  liability  by  instructions, 
or  limitations,  given  by  him  to  his  agent,  and  not  made 
known  in  any  way  to  parties  acting  with  such  agent,  (d) 
And  where  an  agent  is  employed  to  transact  some  specific 
business,  and  only  that,  yet  he  binds  his  principal  by  such 
subordinate  acts  as  are  necessary  to,  or  are  usually  and 
properly  done  in  connection  with  the  principal  act,  or  to 
carry  the  same  into  effect,  (e)  But  an  agent  is  not  at  liberty 
to  exercise  his  discretion  in  the  choice  of  a  mode  of  perform- 
ing the  duty  imposed  upon  him ;  for  he  must  adopt  that 
mode,  and  that  only,  which,  if  he  be  a  general  agent,  is 
fixed  either  by  usage  or  by  the  orders  of  his  principal,  or,  if 
he  be  a  particular  agent,  by  his  principal's  orders  alone,  (ee) 
An  authority  to  sell  does  not  carry  with  it  *authority  to  sell 
on  credit,  unless  such  be  the  usage  of  the  trade ;  but  if  there 
be  such  usage,  then  the  agent  may  sell  on  credit  unless 
specially  instructed  and  required  to  sell  only  for  cash.  (/) 


{d)  Pickering  i'.  Busk,  15  East,  38; 
"Whitehead  v.  Tuckett,  15  East,  400; 
Commercial  Bank  v.  Kortright,  22 
Wend.  348  ;  Munn  v.  Commission  Co. 
15  Johns.  44  ;  Hatch  v.  Taylor,  10  New 
Hamp.  538 ;  Lobdell  v.  Baker,  1  Mete. 
193  ;  Nickson  v.  Brohan,  10  Mod.  109  ; 
Runquist  v.  Ditchell,  3  Esp.  64  ;  Pre- 
cious V.  Abel,  1  Esp.  350 ;  Lloyd  i-. 
West  Branch  Bank,  15  Penn.  172  ; 
Chouteaux  r.  Leach,  18  Penn.  224. — 
E  converso,  it  •would  seem  that  a  third 
party  dealing  with  an  agent  cannot  have 
the  benefit  against  the  principal  of  a 
private  arrangement  between  the  latter 
and  the  agent,  of  which  such  third  party 
neither  knew  nor  was  entitled  to  know. 
See  Acey  v.  Eernie,  7  M.  &  W.  151. 

(e)  Tredwen  v.  Bourne,  6  U.  &  W. 
461  ;  Lord  Elknhorough,  Helyear  v. 
Hawke,  5  Esp.  75  ;  Withington  v.  Her- 
ring, 5  Bing.  442  ;  Goodson  v.  Brooke, 

4  Camp.  163  ;  Barnett  v.  Lambert,  15 
M.  &  W.  489;  Denman  ;;.  Bloomer,  11 
111.  177.  So  where  the  Government  is 
the  principal  and  a  statute  the  letter  of 
authority.     United   States  v.  Wyngall, 

5  Hill,  16.  —  If  a  party  authorizes  a 
broker  to  buy  shares  for  him  in  a  par- 


ticular market,  where  the  usage  is,  tiiat 
when  a  purchaser  does  not  pay  for  his 
shares  within  a  given  time,  the  vendor, 
giving  the  purchaser  notice,  may  resell 
and  charge  him  with  the  difference ;  and 
the  broker,  acting  under  the  authority, 
buys  at  such  market  in  his  own  name  ; 
such  broker,  if  compelled  to  pay  a  dif- 
ference on  the  shares  through  neglect  of 
his  principal  to  supply  funds,  may  sue 
the  principal  for  money  paid  to  his  use. 
Pollock  V.  Stables,  12  Queen's  Bench, 
765 ;  Bayliffe  v.  Butterworth,  1  Exch. 
425. 

(ee)  Daniel  v.  Adams,  Ambl.  495. 
And  the  incidental  means  the  agent  re- 
sorts to  in  carrying  out  his  authority 
must  be  those  which  usually  attend  an 
agency  of  that  kind  :  if  an  extraordi- 
nary exigence  occur  he  has  no  right  to 
have  recourse  to  extraordinary  means 
to  meet  it.  Hawtayne  v.  Bourne,  7  M. 
&  W.  595. 

(/)  Holt,  C.  J.,  Anon.  12  Mod.  514 ; 
Lord  Ellcuhorough,  Wiltshire  v.  Sims,  1 
Camp.  258  ;  Van  Alen  v.  Vanderpool,  6 
Johns.  R.  69  ;  Robertson  v.  Livingston, 
5  Cow.  R.  473  ;  James  v.  McCredic,  1 
Bay,  294;  Delafield  v.  Illinois,  26  Wend. 

[53] 


51* 


THE    LAW    or   CONTRACTS. 


BOOK  I. 


And  if  he  sells  for  credit,  having  no  authority  to  do  so,  he 
becomes  personally  responsible  to  his  principal  for  the  whole 
debt.  (^)  So  is  he  also  if  he  blends  the  accounts  of  his 
principal  with  his  own,  or  takes  a  note  payable  to  himself.  (/«) 
*  If  an  agent  to  whom  goods  are  intrusted  for  a  particular 
purpose,  sell  the  same  to  a  person,  or  in  a  manner  not  within 
the  scope  of  his  authority,  the  principal  may  disaffirm  the  sale 
and  recover  the  goods  of  the  vendee,  if  he  have  not  justified 
the  vendee  in  believing  the  authority  of  the  agent,  {i)  If  the 
power  of  an  agent  be  given  by  a  written  instrument,  which 
instrument  is  known  to  the  party  contracting  with  him,  such 


223  ;  Mellen,  J.,  in  Greely  v.  Bartlett,  1 
Greenl.  R.  172,  179,  stated  the  rule  of 
the  law  merchant  to  be  that  a  factor 
may  sell  the  goods  of  his  principal  on 
a  reasonable  credit  unless  restrained  by 
instructions  or  a  special  usage. 

(f/)  Barksdale  v.  Bi-own,  1  Nott  & 
McCord,  517  ;  Walker  v.  Smith,  4  Dal- 
las 389.  And  the  principal  may  also 
maintain  trover  against  the  vendee. 
Holt,  C.  J.,  Anon.  12  Mod.  514;  and  see 
Wiltshire  v.  Sims,  1  Camp.  258.  —  An 
agent  to  sell  has  no  power  to  barter,  and 
if  he  undertake  to  do  so,  the  principal 
may  recover  the  goods,  although  the 
party  receiving  them  was  ignorant  that 
the  agent  was  not  the  owner.  Guerreiro 
V.  Peile,  3  B.  &  Aid.  616.  — A  simple 
authority  to  sell  will  not  authorize  a  sale 
at  auction.  Towle  v.  Leavitt,  3  Foster 
(N.  H.)  360. — And  it  seems  an  authority 
to  sell  at  auction  will  not  support  a  pri- 
vate sale,  although  more  be  thus  obtained 
than  the  agent  was  limited  to  in  case  of  an 
auction  sale.  Daniel  i\  Adams,  Ambl. 
495.  —  At  common  law  an  agent  can- 
not pledge  the  goods  of  his  principal 
without  special  authority.  Paterson  v. 
Tash,  2  Stra.  1178  :  Daubigny  r.  Duval, 
5  T.  R.  604 ;  De  Bouchout  v.  Goldsmid, 
5  Ves.  211 ;  Rodriguez  v.  HefFernman,  5 
Johns.  Ch.  417  ;  Bott  i-.  McCoy,  20  Ala. 
578.  This  has  been  modified  in  Eng- 
land by  various  statutes,  (4  Geo.  4,  c. 
83  ;  6  Geo.  4,  c.  94  ;  5  &  6  Vict,  c  39.) 
See  Navulshaw  v.  Brownrigg,  7  E.  L.  &  E. 
Ill ;  s.c.  13E.L.&E.261.  And  in  seve- 
ral States  of  this  Union  statutory  enact- 
ments have  been  made  providing  that 
any  consignee,  agent,  or  factor,  having 
possession  of  merchandise  with  author- 
ity to  sell  the  same,  or  having  possession 
of  any  bill  of  lading,  permit,  certificate, 

[54] 


or  order  for  the  delivery  of  merchandise 
with  the  like  authority,  shall  be  deemed 
the  true  owner  thereof  so  as  to  give  va- 
lidity to  the  sale,  disposition,  or  pledge 
of  such  merchandise,  as  security  for  any 
advances,  negotiable  paper,  or  other 
obligation  given  on  faith  thereof.  Maine 
R.  S.  (1841)  ch.  43,  sect.  2  ;  Mass.  Suppl. 
to  R.  S.  ch.  216,  sect.  3 ;  Pub.  Laws  of 
R.  I.  (1844)  p.  280,  sect.  2  ;  N.  Y.  R.  S. 
(1846)  vol.  ii.  part2,  ch.4,  tit.v.  §1-3: 
Laws  of  Peun.  (1846)  ch.  ccccxvii.  3. 
—  By  the  statutes  of  some  of  the  States 
the  pledgee  cannot  retain  the  merchan- 
dise if  he  had  notice  that  the  factor  was 
not  the  true  owner  before  he  made  the 
advances,  for  which  the  merchandise 
was  pledged  as  security.  But  the  statute 
of  Mass.  provides  that  the  pledge  shall 
hold  good,  "  notwithstanding  the  person 
making  such  advances  upon  the  faith  of 
such  deposit  or  pledge  may  have  had 
notice  that  the  person  with  whom  he 
made  such  contract  was  only  an  agent," 
provided  the  pledgee  made  the  advances 
in  good  faith,  believing  that  the  agent 
had  authority  to  enter  into  the  con- 
tract. —  If  the  merchandise  was  pledged 
to  secure  antecedent  advances,  the  pledgee 
acquires  no  other  right  or  interest  in  the 
pledge  than  was  possessed  or  could  have 
been  enforced  by  the  agent  or  factor  at 
the  time  of  making  the  pledge.  Maine 
R.  S.  (1841 )  ch.  43,  sect.  3  :  Mass.  Sup. 
to  R.  S.ch.  216,  sect.  4:  P'ub.  Laws  of 
R.  I.  (1844)  p.  280,  sect.  3;  N.  Y.  R. 
S.  (1846)  vol.  ii.  part.  2,  ch.  4,  tit. 
5.  §  4;  Laws  of  Penn.  (1846)  ch. 
ccccxvii.  4. 

(h)  Symington  i:  McLin,  1  Dev.  & 
Bat.  291.     Sea  post  page  81  (/.) 

(0  Peters  v.  Ballistier,  3  Pick.  495; 
Nash  V.  Drew,  5  Cush.  422. 


CH.   III.]  AGENTS.  *52 

instrument  must  be  followed  strictly,  and  cannot  be  varied  or 
enlarged  by  evidence  of  usage,  (j)  An  agent  employed  to 
answer  particular  questions,  and  withholding  some  facts  ma- 
terial to  the  contract,  about  which  no  questions  are  asked, 
does  not  thereby  vitiate  the  contract ;  (k)  it  would  be  other- 
wise if  such  agent  were  employed  to  make  the  contract.  (/) 
It  has  been  held  that  a  power  to  sell  carries  with  it  a  power 
to  warrant ;  (m)  but  we  think  it  the  better  rule,  that  an  agent 
employed  to  sell,  without  express  power  to  warrant,  cannot 
give  a  warranty  which  shall  bind  the  principal,  unless  the 
sale  is  one  which  is  usually  attended  with  warranty,  in  which 
case  he  may.  (w)  And  in  such  case,  if  the  principal  gives  his 
agent  express  instructions  not  to  warrant,  and  the  agent  does 
warrant,  although  it  has  been  said  that  such  warranty  is  not 
binding  on  the  principal,  on  the  general  ground  that  no  prin- 
cipal is  bound  by  the  acts  of  his  agent  if  such  acts  transcend 
his  authority,  (o)  yet  the  better  opinion  is  that  the  principal 
is  bound  by  such  warranty,  where  the  buyer  was  justified  by 
the  nature  of  the  case  in  believing  that  this  authority  was 
given  and  had  no  means  of  knowing  the  limitation  of  the 
*  authority  of  the  agent,  (p)     The  usage  of  the  trade  or  busi- 

ij)  Delafield  v.  Illinois,  26   "Wend,  deliver   has    no   authority   to   warrant. 

192.  Woodin  v    Burford,  2  Cr.  &  M.  291,  4 

(k)  Huckman  v.  Fernie,  3  M.  &  W.  Tyr.   264.      In  judicial   sales   there  is 

505.  no  warranty  express  or  implied.     The 

(/)  Everett  v.  Desborough,   5  Bing.  Monte  AUegre,  9  "\ybcat.  616. 

503;   Fitzherbert  v.   Mather,    1    T.  R.  (o)  Lord  Kenyon,Fenn  v.  Harrison, 

12.  3  T.  R.  760;  Dodderldge,  C.  J.,  Seignior 

(m)  Nelson  v.  Cowing,  6  Hill,  N.  Y.  and  Wolmer's  case,  Godbolt,  361. 

336;  Woodford  v.  McClenahan.  4  Gil-  {p)  Ashurst,  J.,  Fenn  v.  Harrison,  3 

man,  85;  Hunter  y.  Jameson,  6  Iredell,  T.  R.  760,  who  said,   "I  take  the  dis- 

252.  tinction  to  be  that  if  a  person  keeping 

(n)  Gibson  v.  Colt,  7  Johns.  390;  livery-stables,  and  having  a  horse  to  sell. 
Helyear  t\  Hawke,  5  Esp.  72 ;  Croom  directed  his  servant  not  to  warrant  him, 
V.  Shaw,  1  Flor.  211.  A  sale  by  sam-  and  the  servant  did  nevertheless  warrant 
pie  is  a  warranty  that  the  bulk  shall  him,  still  the  master  would  be  liable  on 
correspond  with  the  sample ;  and  a  ge-  the  warranty,  because  the  servant  was 
neral  authority  to  sell  goods  at  whole-  acting  within  the  general  scope  of  his 
sale  is  an  authority  to  sell  by  sample,  authority,  and  the  public  cannot  be  sup- 
Andrews  V.  Kneeland,  6  Cowen,  354.  posed  to  be  cognizant  of  any  private 
An  agent  to  sell  a  horse  may  waiTant  conversation  between  the  master  and 
his  soundness.  Alexander  v.  Gibson,  servant ;  but  if  the  owner  of  a  horse 
2  Camp.  555;  Bradford  v.  Bush,  10  were  to  send  a  stranger  to  a  fair  with 
Alabama,  386.  In  Alabama  an  author-  express  directions  not  to  warrant  the 
ity  to  sell  a  slave  has  been  held  to  imply  horse,  and  the  latter  acted  contrary  to 
an  authority  to  warrant.  Skinner  ;;.  the  orders,  the  purchaser  could  only 
Gunn,  9  Porter,  305 ;  Gaines  v.  jNIcKin-  have  recourse  to  the  person  who  actu- 
ley,  1  Alabama,  446.    But  an  agent  to  ally  sold  the  horse,  and  the  owner  Avould 

[55] 


52 


THE   LAW   OP   CONTRACTS. 


[book  I. 


ness  is  of  great  importance  in  determining  these  questions ; 
but  one  distinction  seems  to  be  taken  between  the  case  of  a 
written  authority  and  that  of  an  oral  authority,  namely,  where 
the  authority  is  oral  and  is  known  to  the  party  deaUng  with 
the  agent,  usage  may  enlarge  and  affect  the  contract ;  but, 
as  has  been  already  stated,  usage  has  not  this  power  where 
the  whole  authority  is  in  writing,  and  is  known  as  such  to 
the  party  dealing  with  the  agent,  {q) 

If  a  principal  sells  goods  by  an  agent,  and  the  agent  makes 
a  material  misrepresentation  which  he  believes  to  be  true,  and 
his  principal  knows  to  be  false,  this  is  the  falsehood  of  the 
principal  and  avoids  the  sale,  (r) 


not  he  liable  on  the  warranty,  because 
the  servant  was  not  acting  within  the 
scope  of  his  employment."  So  per 
Bayley,  J.,  Pickering  v.  Busk,  15  East, 
45. 

(q)  Attwood  V.  Mannings,  7  B.  & 
Cress.  278;  1  M.  &  Ryl.  66,  S.  C. ; 
Schimmelpennich  v.  Bayard,  1  Peters, 
264. 

(r)  Schneider  v.  Heath,  3  Camp.  506. 
And  this  is  true  although  the  represent- 
ations are  of  such  a  character  that  the 
principal  is  not  bound  by  them  ;  for.  as 
was  said  by  Lord  Abinger  in  Cornfoot  v. 
Fowke,  6  M.  &  W.  386,  "it  does  not 
follow  that  because  he  is  not  bound  by 
the  representation  of  an  agent  without 
authorit}',  he  is  therefore  entitled  to  bind 
another  man  to  a  contract  obtained  by 
the  false  representation  of  that  agent. 
It  is  one  thing  to  say  that  he  may  avoid 
a  contract  if  his  agent,  without  his  au- 
thority, has  inserted  a  warranty  in  the 
contract;  and  another  to  say  that  he 
may  enforce  a  contract  obtained  by 
means  of  a  false  representation  made 
by  his  agent,  because  the  agent  had  no 
authority."  Cornfoot  v.  Fowke,  6  M.  & 
W.  358,  was  an  assumpsit  for  the  non- 
performance of  an  agreement  to  take  a 
ready-furnished  house.  The  plaintiif 
had  employed  C.  to  let  the  house  in 
question,  and  the  defendant  being  in 
treaty  with  C.  for  taking  it,  was  informed 
by  him  that  there  was  no  objection  to 
the  house ;  but  after  entering  into  the 
agreement  discovered  that  the.adjoining 
house  was  a  brothel,  and  on  that  account 
declined  to  fulfil  the  contract.  It  ap- 
peared that  the  plaintiff  knew  of  the 
existence  of  the  brothel  before,  but  C, 
[561 


the  agent,  did  not.  The  majority  of  the 
court  held,  conti'ary  to  the  opinion  of 
Lord  Abinger,  C.  B.,  that  these  facts  fur- 
nished no  ground  of  defence  to  the  ac- 
tion. This  case  has  been  very  much 
questioned  from  the  first,  and  was  over- 
ruled in  Fuller  v.  Wilson,  3  Queen's 
Bench,  58.  The  judgment  in  the  latter 
case  was  indeed  reversed  in  the  Ex- 
chequer Chamber,  3  Q.  B.  68,  but  not  on 
this  point;  Lord  Abinger  there  saying, 
3  Q.  B.  76,  "  The  judgment  of  the  Court 
of  Queen's  Bench  on  the  motion  to  enter 
a  verdict  was  not  given  upon  the  facts 
now  befoi-e  us.  We  shall  not  reverse 
that  if  we  give  judgment  now  for  the 
plaintiff  in  error."  In  this  country, 
Cornfoot  r.  Fowke  was  denied  to  be  law 
by  the  court  in  Fitzsimmons  v.  Joslin, 
21  Verm.  129.  And  in  Crump  r.  u! 
S.  Mining  Co.,  7  Grattan,  352,  where 
the  plaintiffs  authorized  their  agent  to 
procure  subscriptions  to  a  prospectus  in 
the  form  of  a  subscription  paper  for  the 
sale  of  stock  in  their  gold  mining  com- 
pany upon  the  terms  prescribed  in  such 
prospectus,  representing  the  mines  to  be 
in  full  and  successful  operation,  with 
several  particulars  of  description  and 
recommendation  and  referring  to  the 
last  report  of  the  directors  of  the  com- 
pany for  a  full  description  of  the  mines, 
buildings,  and  machinery,  which  paper 
was  signed  by  the  defendants ;  it  was 
held  that  thej'  might  in  an  action  upon 
the  contract  prove  that  the  agent  at  the 
time  of  procuring  their  subscriptions, 
made  representations  in  addition  to 
those  contained  in  the  prospectus  and 
reports  of  the  company,  upon  the  faith 
of  which  the  defendants  became  sub- 


CH.  III.] 


AGENTS. 


53 


SECTION  VI. 

THE   RIGHT   OF   ACTION   UNDER  A   CONTRACT. 


In  contracts  by  deed  no  party  can  have  a  right  of  action 
under  them  but  the  party  whose  name  is  to  them ;  (s)  but  in 
the  case  of  a  simple  contract  an  undisclosed  principal  may 
show  that  the  apparent  party  was  his  agent,  and  may  put 
himself  in  the  place  of  his  agent,  (t)  but  not  so  as  to  affect 
injuriously  the  rights  of  the  other  party,  (w)  How  far  this 
rule  is  affected  by  the  Statute  of  Frauds  will  be  considered 
hereafter,  (v)  By  parity  of  reasoning,  an  undisclosed  prin- 
cipal, subsequently  discovered,  may  be  made  liable  on  such 
contract ;  (iv)  but  in  general,  subject  to  the  qualification  that 
the  state  of  the  account  between  the  principal  and  agent  is 
not  altered  to  the  detriment  of  the  principal,  {x)  It  might 
be  supposed  that  the  party  dealing  with  an  agent  whose 
agency  is  concealed,  does  not  lose  his  election  to  have  recourse 
either  to  the  agent,  or  to  his  discovered  principal,  if  the  prin- 


scribers,  but  which  representations  were 
false  and  fraudulent;  although  it  was 
insisted  by  the  plaintiffs  that  the  author- 
ity of  their  agent  was  limited  and  de- 
fined by  the  prospectus  and  report. 

(s)  Green  v.  Home,  1  Salk.  197 ; 
Frontiii  v.  Small,  2  Ld.  R^m.  1418. 

(t)  Skinner  v.  Stocks,  4  B.  &  Aid. 
437  ;  Cothay  v.  Fennel!,  10  B.  &  Cress. 
671 ;  The  Duke  of  Norfolk  v.  Worthy, 
1  Camp.  337 ;  Garrett  v.  Handley,  4  B. 
&  Cress.  664  ;  Davis  v.  Boardman,  12 
Mass.  R.  80  ;  Rutland  Railroad  v.  Cole, 
24  Verm.  33  ;  Higgins  v.  Senior,  8  M. 
&  W.  834;  Whitmore  v.  Gilmour,  12 
M.  &  W.  808,  where  a  bankrupt,  under 
the  circumstances  of  the  case,  was  con- 
sidered agent  for  his  assignees. 

(u)  George  v.  Clagett,  7  T.  R.  359  ; 
Sims  V.  Bond,  5  B.  &  Ad.  389  ;  Warner 
V.  McKay,  1  M.  &  W.  591  ;  Hunting- 
don V.  Knox,  7  Cush.  371  ;  VioJett  v. 
Powell,  10  B.  Mon.  349.  And  see 
Harrison  v.  Ruscoe,  15  M.  &  W.  231. 

(y)  And  see  p.  48*  note  (a)  supra. 
Sec  also  Bank  of  United  States  v.  Ly- 
man, in  United  States  Circuit  Court, 
1848,  (reported  20  Verm.  666,  673,  674,) 
where  the  doctrine  of  Lord  Abinger  and 


Baron  Parke  in  Beckham  v.  Drake, 
9  M.  &  W.  79,  was  recognized  by  Pren- 
tiss, J. 

(w)  Thompson  v.  Davenport,  9  B.  & 
Cress.  78  ;  Cothay  v.  Fennell,  10  B.  & 
Cress.  671  ;  Thomas  v.  Edwards,  2  M.  & 
W.  216;  Beebe  v.  Robert,  12  Wend. 
413  ;  Upton  v.  Gray,  2  Greenleaf,  R.  373 ; 
Nelson  v.  Powell,  3  Doug.  410  ;  Hopkins 
V.  Lacouture,  4  Louis.  64  ;  Hyde  v. 
Wolf,  4  Louis.  234  ;  Bacon  v.  Sondley, 
3  Strob.  L.  542.  —  The  party  dealing 
with  the  agent  may,  when  he  discovers 
the  principal,  charge  either  at  his  elec- 
tion. Thompson  v.  Davenport,  9  B.  & 
C.  78;  Wilson  v.  Hart,  7  Taunt.  295; 
Railton  v.  Hodgson,  4  Taunt.  576,  note 
(a)  ;  Robinson  v.  Gleadow,  2  Bing,  N.  C. 
161;  Paterson  v.  Gandasequi,  15  East, 
62  ;  Higgins  v.  Senior,  8  M.  &  W.  834. 
But  where  a  vendor  takes  the  note  of 
the  agent,  which  shows  him  to  rely  upon 
the  agent,  he  cannot  afterwards  sue  the 
principal.  Paterson  v.  Gandesequi,  15 
East,  62  ;  Hyde  v.  Paige,  9  Barb.  150; 
Bate  V.  Burr,  4  Ilarring.  130. 

(x)  Thomson  v.  Davenport,  9  B.  & 
Cress.  78  ;  Lord  Ellenhoromjh,  Kymer  v. 
Suwercropp,  1  Camp.  109. 

[57] 


54* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


cipal  has  -prematurely  settled  with  his  agent,  even  without 
fraud ;  as  where  the  agent  bought  on  one  month's  credit 
and  the  principal  paid  him  before  the  credit  had  expired,  (y) 
But  it  may  be  open  to  question  whether  such  settlement  by 
*the  principal,  although  premature,  if  perfectly  bond  Jide^  in 
the  course  of  business,  and  free  from  all  suspicion  that  it  had 
been  hastened  for  the  purpose  of  interfering  with  the  seller, 
would  not  discharge  the  principal.     We  think  it  would. 


SECTION  VII. 
LIABILITY   OF   AN   AGENT. 

An  agent  is  not  personally  liable,  unless  he  transcends  his 
agency,  or  departs  from  its  provisions,  (z)  or  unless  he  ex- 
pressly pledges  his  own  liability,  [a)  or  unless  he  conceals 
his  character  of  agent,  [b)   or  unless  he  so  conducts  as  to 


(y)  Kymer  v.  Suwercropp,  1  Camp. 
109 ;  Waring  v.  Favenck,  1  Camp.  85. 

(z)  Feetcr  v.  Heath,  11  Wend.  477; 
Johnson  v.  Ogilby,  3  P.  Wms.  279; 
Jones  V.  Downman,  4  Queen's  Bench, 
235,  note  (a).  The  decision  of  the 
Queen's  Bench  in  this  case  was  after- 
wards reversed  in  the  Exchequer  Cham- 
ber on  a  special  ground,  but  the  doctrine 
of  law  does  not  seem  to  be  impugned. 
—  But  the  departure  from  authority, 
to  charge  the  agent,  must  not  be  known 
to  the  other  contracting  party.  Story 
on  Agency,  §  265,  recognized  by  Lord 
Denman,  Jones  v.  Downman,  4  Q.  B. 
239. 

(a)  If  an  agent,  executing  a  contract 
in  writing,  lise  language  whose  legal 
effect  is  to  charge  him  personally,  it  is 
not  competent  for  him  to  exonerate 
himself  by  showing  that  he  acted  for  a 
principal,  and  that  the  other  contracting 
party  knew  this  fact  at  the  time  when 
the  agreement  was  made  and  signed. 
Magee  v.  Atkinson,  2  M.  &  W.  440 ; 
Jones  V.  Littledale,  6  Ad.  &  Ell.  486; 
Higgins  V.  Senior,  8  M.  &  W.  834  ;  Ap- 
pleton  V.  Binks,  5  East,  148,  which  was 
the  case  of  a  contract  under  seal ;  Chad- 
wick  V.  Madon,  12  E.  L.  &  E.  180; 
Hancock  v.   Fairfield,  30  Maine,  299. 

[58] 


See  also  Duvall  v.  Craig,  2  Wheat.  56  ; 
Tippets  V.  Walker,  4  Mass.  595 ;  Fors- 
ter  V.  Fuller,  6  Mass.  58;  White  v. 
Skinner,  13  Johns.  307  ;  Stone  v.  Wood, 
7  Cowen,  453  ;  Andrew  v.  Allen,  4 
Harring.  452  ;  Potts  v.  Henderson,  2 
Cart.  (Ind.)  327  ;  Fash  v.  Ross,  2  Hill, 
(S.  Car.)  294. 

(b)  Franklyn  v.  Lamond,  4  Com. 
Bench,  637,  where  it  was  held  that  the 
fact  of  selling  as  auctioneers  was  not  such 
an  indication  of  agency  as  to  absolve  the 
defendants  from  personal  responsibility. 
— In  an  action  for  use  and  occupation  of 
lands  by  the  sufferance  and  permission 
of  the  plaintiffs,  it  appeared  that  the 
lands  were  let  by  auction  by  the  plain- 
tiffs, E.  and  T.,  who  were  auctioneers, 
to  the  defendant,  under  conditions  which 
stated  the  letting  to  be  "  By  E.  and  T., 
auctioneers."  One  of  the  conditions  was, 
"  The  rent  is  to  be  paid  into  the  hands 
of  E.  or  T.,  auctioneers,  or  to  their  or- 
der, at  two  payments,"  &c.  At  the  foot 
of  the  document  was  written,  "  approved 
by  me,  David  Jones."  Jones  was  the 
tenant  at  the  time  of  the  sale.  Nothing 
else  appeared  in  the  conditions  to  show 
on  whose  behalf  the  letting  was.  The 
plaintiffs  gave  evidence  to  show  that 
Jones,  being  indebted  to  them,  had  au- 


CH.  III.] 


AGENTS. 


55 


render  his  principal  inaccessible  or  irresponsible,  (c)  or  unless 
he  acts  in  bad  faith.  If  he  describes  himself  as  agent  for 
some  unnamed  principal  he  is  of  course  liable  if  proved  to  be 
the  real  principal,  (cc)  And  one  acting  as  agent  is  liable 
personally,  if  it  be  shown  that  he  acts  without  authority,  (c?) 
Whether  an  agent  makes  himself  liable  who  transcends  his 
authority,  or  acts  without  authority,  but  believes  in  good 


thorized  them  to  let  the  lands  as  above, 
pay  the  rent  due  to  Jones's  landlord,  and 
retain  any  surplus  in  satisfaction  of  their 
own  debt.  Evidence  to  a  contrary  effect 
was  given  by  the  defendant.  The  judge 
in  summing  up  left  it  to  the  jury  whether 
the  plaintiffs  had  let  the  lands  on  their 
own  behalf  and  as  creditors  of  Jones,  or 
merely  as  his  agents.  The  jury  found 
a  letting  by  the  plaintiffs  on  their  own 
behalf  Held,  that  the  conditions  import- 
ed a  letting  by  Jones,  E.  and  T.  acting  as 
his  agents  ;  and  that  the  document  ought 
to  have  been  so  explained  to  the  jury. 
And  a  new  trial  was  granted.  Evans  v. 
Evans,  3  A.  &  El.  132.— The  agent  is 
perhaps,  in  like  manner  liable  (at  the  op- 
tion f)f  the  party  contracting  with  him)  if 
he  do  not  state  the  name  of  the  principal, 
and  notwithstanding  the  other  contract- 
ing party  have  the  means  of  knowing 
the  principal.  Thomson  v.  Davenport, 
9  B.  &  Cress.  78  ;  Owen  v.  Gooch,  2 
Esp.  567  ;  Raymond  v.  Proprietors  of 
Crown  and  Eagle  Mills,  2  Mete.  319; 
Winsor  v.  Griggs,  5  Cush.  210  ;  Taintor 
V.  Prendcrgast,  3  Hill,  72. 

(c)  Ashurst,  J.,  Eenn  v.  Harrison,  3 
T.  R.  761  ;  Savage  v.  Rix.  9  New  Hamp. 
263  ;  Sydnor  v.  Kurd,  8  Tex.  98  ;  Keen- 
er V.  Harrod,  2  Maryl.  63. 

{cc)  Schmalz  v.  Averv,  3  E.  L.  &  E 
391  ;  Carr  v.  Jackson, 'lO  E.  L.  &  E. 
526. 

(d)  Dusenberry  v.  Ellis,  3  Johns.  Cas. 
70 ;  Bayley,  B.,  Thomas  v.  Hewes,  2 
C  &  Mee.  530,  note  (a).  And  a  subse- 
quent ratification  it  seems  will  not  (al- 
ways at  least)  excuse  him.  Rossiter  i;. 
Rossiter,  8  Wend.  494  ;  Palmer  i'.  Ste- 
phens, 1  Dcn.471.— If  A.,  supposing  B. 
to  be  agent  for  C.  in  the  matter,  enter 
with  him  into  a  contract  which  is  illegal 
if  the  contract  of  C,  but  is  not  illegal  if 
B.'s  personal  contract,  and  it  turn  out 
that  B.  acted  without  authority,  the  ille- 
gality of  the  supposed  contract  is  no  bar 
to  an  action  by  A.  against  B. ;  for  the 
contract  actualUj  made  contained  no  ille- 


gality. Parke,  B.,  Thomas  v.  Edwards, 
2  M.  &.  W.  217.— It  is  perhaps  doubtful 
whether  or  not  a  party  contracting,  with- 
out authority,  as  agent  for  another,  and 
giving  the  name  of  the  principal,  can 
afterwards  himself  enforce  the  contract 
as  principal.  Strictly,  it  would  seem  he 
cannot.'  Even  admitting  that  the  agent 
thus  acting  without  authority,  might  be 
held  liable  upon  the  contract  as  principal, 
because  he  acted  in  his  own  wrong,  yet 
it  does  not  follow  that  he  himself  should 
be  allowed  to  take  advantage  of  the 
wrong.  And  this  appears  to  have  been 
the  view  of  Lord  JE/lenborough,  C.  J., 
and  Abbott,  J.,  in  Bickerton  v.  Burrell, 

5  M.  &  Sel.  383  ;  though  the  decision  in 
that  case  was  put  on  the  narrower,  and 
somewhat  unsatisfactory  ground,  that 
the  plaintiff'  had  not  notified  the  defend- 
ant, previous  t8  bringing  the  action,  of 
his  claim  to  the  character  of  principal. 
— If  the  other  party,  after  knowledge  of 
tlie  true  state  of  the  matter,  elect  to  act 
under  the  contract,  it  is  clear  that  he  has 
waived  his  right  to  object  that  it  was 
not  made  originally  with  the  plaintiff  as 
principal.     In  Rayner  r.  Grote,  15M. 

6  W.  359,  the  plaintiff'  made  a  written 
contract  for  the  sale  of  goods,  in  which 
he  described  himself  as  the  agent  of  J. 
&  T. ;  the  buyers  accepted  part  of  the 
goods,  and  the  plaintiff'  (who  in  reality 
was  himself  principal  in  the  transaction, 
and  not  agent  for  J.  &  T.)  brought  an 
action  in  his  own  name  against  the 
buyers  for  refusing  to  accept  the  remain- 
der. At  nisi  prlus  the  jury  were  in- 
structed that  if  the  defendants  received 
the  first  portion  of  goods,  with  know- 
ledge that  the  plaintiff  was  the  real 
seller,  and  all  parties  then  treated  the 
contract  as  one  made  with  the  plaintiff 
as  principal  in  the  transaction,  the  plain- 
tiff was  entitled  to  recover,  and  upon 
tliis  instruction  a  verdict  having  been 
rendered  for  the  plaintiff",  the  court  held 
that  the  case  was  properly  left  to  the 
jury,  and  refused  to  disturb  the  verdict. 

[59] 


56*  THE   LAW   OF   CONTRACTS.  [bOOK  I. 

faith  that  he  has  such  authority,  may  be  not  absolutely 
settled.  It  must  depend  upon  the  question  whether  he  is 
regarded  as  always  warranting  his  possession  of  authority. 
Where  an  agent  fraudulently  *  misrepresents  his  authority, 
with  the  purpose  of  deception,  there  it  is  equally  clear  that 
he  is  liable  legally  as  it  is  that  he  is  liable  morally.  But 
where  he  verily  believes  himself  to  possess  the  authority 
under  which  he  acts,  but  is  mistaken  on  this  point,  then 
a  deciding  test  of  his  liability  may  perhaps  be  found  in  his 
means  of  knowledge.  If  he  could  have  known  the  truth 
and  did  not  through  his  own  fault,  then  he  is  ignorant  by 
his  own  wrong.  And  if  an  injury  is  to  result  from  this 
ignorance,  either  to  a  third  party  or  to  him,  and  the  third 
party  is  wholly  innocent,  it  ought  to  fall  on  him  who  so 
represented  himself  as  agent,  because  he  was  not  therein 
wholly  innocent.  He  was  not  guilty  of  intentional  decep- 
tion, but  he  was  guilty  of  deception  in  fact,  and  if  this  was 
caused  by  his  want  of  care  or  want  of  diligence,  or  by  his 
negligence  in  any  way,  he  must  bear  the  burden  of  it.  And 
this  is  what  we  should  infer  from  some  of  the  cases  in  which 
it  is  said  that  an  agent  who  states  that  which  he  does  not 
know  to  be  true,  places  himself  under  the  same  liability  as 
one  who  states  what  he  knows  to  be  not  true.  It  may  be 
meant  that  he  states  what  he  does  not  know  to  be  true,  and 
by  proper  diligence  and  care  might  have  known  to  be  not  true. 
But  the  question  still  remains,  whether  the  agent  is  liable 
where  he  himself  has  been  deceived  wholly  without  his  fault, — 
as  by  a  forged  letter  which  he  could  not  detect.  The  case  must 
be  very  rare  in  fact,  where  one  acting  as  an  agent  is  wholly 
without  the  means  of  ascertaining  his  own  agency.  But  we 
incline  to  the  opinion,  as  resting  on  the  better  reason,  that 
he  would  still  be  held.  If  he  and  the  third  party  with  whom 
he  deals,  are  both  perfectly  innocent,  still  the  loss  resulting 
from  his  want  of  authority  must  fall  somewhere ;  and  it 
seems  just  that  it  should  rest  on  him  who  has  assumed,  in- 
nocently but  yet  falsely,  that  he  possessed  this  authority,  (e) 

(e)  In  Polhill  v.  Walter,  3  B.  &  Ad.  -which  the  affirmer  knew  to  be  false ; 
114,  the  rij^lit  of  action  is  held  to  be  and  if  he  acted  under  an  authority 
grounded  on  an  affirmation  of  authority     which  was  forged,  but  which  he  believ- 

[GO] 


CH.  III.] 


AGENTS. 


57 


The  question  then  occurs  whether  in  such  a  case  the  agent 
can  be  held  on  the  contract^  and  it  has  been  so  decided.  (/) 


cd  genuine,  he  would  not  be  responsible. 
Story  (Agency,  sect.  263,  note  2,)  says, 
"the  distinction  of  Lord  Tenterden  (in 
the  above  case,)  is  entirely  overthrown 
by  Smout  v.  Ilbery,  10  Mees.  &  W.  1." 
We  do  not  so  understand  this  case. 
There  the  family  of  Mr.  Ilbery  was  sup- 
plied with  provisions  by  Smout.  Il- 
bery was  lost  in  a  voyage  to  India,  in 
Oct.  1839;  the  provisions  were  supplied 
both  before  and  after  his  death  ;  and  the 
action  was  brought  against  the  widow. 
A  principal  question  was,  whether  she 
was  liable  for  the  provisions  supplied 
after  the  death  of  Ilbery,  and  before  it 
was  known.  Alder&on,  B.,  in  giving 
the  opinion  of  the  court,  says,  "  There 
is  no  ground  for  saying,  that  in  repre- 
senting her  authority  as  continuing,  she 
did  any  wrong  whatever.  There  was 
no  mala  Jides  on  her  part  —  no  want  of 
due  diligence  in  acquiring  knowledge 
of  the  revocation  —  no  omission  to  state 
any  fai't  within  her  knowledge  relating 
to  it,  and  the  revocation  itself  was  by 
the  act  of  God."  On  this  ground  she 
was  held  not  liable.  But  he  says  pre- 
viously "  that  where  a  party  making  the 
contract  as  agent,  bonajide  believes  that 
such  authority  is  vested  in  him,  but  has 
in  fact  no  such  authority,  he  is  still  per- 
sonally liable.  In  these  cases,  it  is  true, 
the  agent  is  not  actuated  by  any  fraud- 
ulent motives,  nor  has  he  made  any 
statement  which  he  knows  to  be  un- 
true. But  still  his  liability  depends  on 
the  same  principles  as  before.  It  is  a 
wrong  differing  only  in  degree,  but  not 
in  its  essence,  from  the  former  case,  to 
state  as  true  what  the  individual  making 
such  statement  does  not  know  to  be 
true,  even  though  he  does  not  know  it 
to  be  false,  but  believes  without  suffi- 
cient grounds,  that  the  statement  will 
ultimately  turn  out  to  be  correct."  It 
cannot  be  doubted,  however,  that  the 
court  intend  to  confine  the  liability  of 
the  supposed  agent  to  the  case  M-licre 
he  not  only  had  no  authority,  but  might 
have  known  tliat  he  had  iione.  This 
may  not  only  be  inferred  from  the  de- 
cision, but  the  court  say  afterwards, 
"  If,  then,  tlie  true  principle  derivable 
from  the  cases  is,  that  there  must  be 
some  wrong  or  omission  of  right  on  the 
part  of  the  agent,  in  order  to  make  him 
VOL  I.  6 


personally  liable  on  a  contract  made  in 
the  name  of  his  principal,  it  will  follow 
that  the  agent  is  not  responsible  in  such 
a  case  as  the  present.  And  to  this  con- 
clusion we  have  come."  We  doubt, 
however,  the  law  of  this  case,  and  pre- 
fer the  view  stated  in  the  text. 

{/)  This  question  has  been  very  re- 
cently discussed  in  the  Queen's  Bench 
in  the  case  of  Jenkins  v.  Hutchinson,  13 
Jur.  763;  s.  c.  13  Q.B.  744.  That  was 
an  action  of  assumpsit  on  a  charter- 
party,  which  purported  to  be  made  be- 
tween the  plaintiff  on  the  one  part,  and 
one  T.  A.  Barnes  of  the  other  part,  and 
was  signed  "  Ralph  Hutchinson,  for  T. 
A.  Barnes."  It  appeared  that  Hutchin- 
son had  no  authority  to  enter  into  the 
charter-party  for  Barnes,  and  it  was 
therefore  contended  that  he  was  per- 
sonally liable  as  principal  in  this  action, 
but  the  court  held  otherwise.  Lord 
Denman  said :  —  ''It  is  not  pretended 
that  the  defendant  had  any  interest  as 
principal ;  he  signed  as  agent,  intending 
to  bind  a  principal,  and  in  no  other 
character.  That  he  may  be  liable  to 
the  plaintiff  in  another  form  of  action, 
for  any  damage  sustained  by  his  repre- 
senting himself  to  be  agent,  when  he 
was  not,  is  very  possible ;  but  the  ques- 
tion is  here,  whether  lie  can  be  sued 
on  the  charter-party  itself,  as  a  party  to 
it.  No  reported  case  lias  decided  that  a 
party  so  circumstanced  can  be  sued  on 
the  instrument  itself.  Mr.  UnsiiQv,  Story, 
in  his  book  on  the  Law  of  Agency, 
states  that  the  decisions  in  the  Ameri- 
can courts  are  conflicting  on  tiiis  point, 
and  that  '  in  England  it  is  held,  that  the 
suit  must  be  by  a  special  action  on  the 
case  ; '  citing  Polhill  v.  Walter,  3  B.  & 
Ad.  114.  That  case  does  not,  perhaps, 
establish  the  broad  proposition  ;  for  the 
contract  was  a  bill  of  exchange — an 
instrument  differing  in  many  respects 
from  ordinary  contracts.  In  the  absence 
of  any  direct  autliority,  we  think  that  a 
party  who  executes  an  instrument  in 
the  name  of  another,  whose  name  he 
puts  to  the  instrument,  and  adds  his 
own  name  only  as  agent  for  that  other, 
cannot  be  treated  as  a  party  to  that  in- 
strument, and  be  sued  upon  it,  unless  it 
be  sliown  tliat  he  was  the  real  principal." 
See  also  Lewis  r.  Nicholson,  12  E.  L. 
[01] 


58* 


THE    LAW    OF   CONTRACTS. 


[book  I. 


But  *\ve  think  it  the  better  opinion  that  the  contract  is  wholly 
void.  It  is  not  the  contract  of  the  principal,  because  he  gave 
no  authority  to  the  supposed  agent.  It  is  not  the  contract 
of  the  agent,  for  he  professed  to  act  for  the  principal.  So, 
if  one  forges  a  signature  to  a  note,  and  obtains  money  on 
that  note,  he  cannot  be  held  on  it  as  on  his  promise  to  pay. 
But  in  all  such  cases  the  supposed  agent  may  be  reached  in 
assumpsit  if  money  be  paid  to  him  or  work  and  labor  done 
for  him  under  such  supposed  contract,  or  in  trespass  for  special 
damages  for  so  undertaking  to  act  for  another  without  au- 
thority, or  in  some  other  appropriate  action ;  but  not  on  the 
contract  itself. 

An  agent  who  exceeds  his  authority  renders  himself  liable 


&  E.  430.  —  The  law  is  so  held  in  Mas- 
sachusetts. Long  V.  Colburn,  11  Mass. 
97;  Ballou  v.  Talbot,  16  Mass.  461; 
Jefts  V.  York,  4  Cush.  371.  And  in 
Abbey  v.  Chase,  6  Cush.  56,  the  view 
taken  in  the  text  is  confirmed.  The 
Court  say,  "  It  does  not  necessarily  fol- 
low that  a  contract  made  by  an  author- 
ized agent,  which  does  not  bind  the 
principal,  becomes  the  agent's  contract, 
and  makes  him  answerable  if  it  is  not 
performed.  This  depends  upon  the 
legal  effect  of  the  terms  of  the  contract. 
If  the  agent  employs  such  terms  as 
legally  import  an  undertaking  by  the 
principal  only,  the  contract  is  the  prin- 
cipal's, and  he  alone  is  bound  by  it. 
But  if  the  terms  of  the  contract  legally 
import  a  personal  undertaking  of  the 
agent,  and  not  of  the  principal,  tlien  it 
is  the  contract  of  the  agent,  and  he 
alone  is  answerable  for  a  breach  of  it. 
So  when  one  who  has  no  authority  to 
act  as  another's  agent,  assumes  so  to 
act,  and  makes  either  a  deed  or  a  simple 
contract  in  the  name  of  the  other,  he  is 
not  personally  liable  on  the  covenants 
in  the  deed,  or  on  the  promise  in  the 
simple  contract,  unless  it  contain  apt 
words  to  bind  him  personally.  The 
only  remedy  against  liim  in  this  com- 
monwealth, is  an  action  on  the  case  for 
falsely  assuming  authority  to  act  as 
agent."  In  Maine,  Harper  v.  Little,  2 
Greenl.  14  ;  Stetson  v.  Fatten,  2  Greenl. 
358.  In  Connecticut,  Ogden  r.  Ray- 
mond, 22  Conn.  385.  In  Indiana,  Mc- 
Henry  v.  Duffield,  7  Blackf.  41.  And 
in  Pennsylvania,  Hopkins  v.  Mehaffy, 

[62] 


11  S.  &  R.  126.  In  this  case  Gibson, 
J.,  says,  "  No  decision  can  be  found  in 
support  of  the  position,  that  what  ap- 
pears on  the  face  of  the  deed  to  be  the 
proper  covenant  of  the  principal,  but 
entered  into  through  the  agency  of  an 
attorney,  shall  be  taken  to  be  the  proper 
covenant  of  the  attorney,  whenever  he 
had  not  authority  to  execute  the  deed. 
How  could  he  be  declared  against  ?  If 
in  the  usual  and  proper  manner  of 
pleading  it  were  alleged,  that  the  agent 
had  covenanted,  it  would  appear  by  the 
production  of  the  instrument  that  he 
had  not,  but  that  his  principal  had  cove- 
nanted through  his  means  ;  which,  on 
71011  est  factum  being  pleaded.  Mould  be 
fatal."  But  in  New  York  the  courts 
have  held  the  agent  personally  liable  on 
the  contract  in  such  cases.  Dusenbury 
V.  Ellis,  3  Johns.  Cas.  70;  White  v. 
Skinner,  13  Johns.  307  ;  Randall  v.  Van 
Vechten,  19  Johns.  60  ;  Meech  v.  Smith, 
7  Wend.  315;  Palmer  v.  Stephens,  1 
Denio,  471.  But  see  Walker  ?;.  Bank 
of  the  State  of  New  York,  13  Barb. 
639,  contra.  The  agent  is  held  liable 
on  the  contract  in  New  Jersey,  Bay  v. 
Cook,  2  N.  J.  343.  In  New  Hampshire 
the  court  seem  to  have  taken  a  middle 
course.  It  is  there  held  that  if  a  person, 
having  no  authority  to  act  as  agent, 
undertakes  so  to  act  in  making  a  con- 
tract, and  the  contract  whicli  he  makes, 
rejecting  icliat  he  icas  not  authorized  to 
put  to  it,  contains  apt  words  to  charge 
himself,  he  is  personally  liable.  Woodes 
V.  Dennett,  9  N.  H.  55  ;  Savage  v.  Rix. 
9  N.  H.  263, 


CH.  III.] 


AGENTS. 


58 


to  the  whole  extent  of  the  contract,  although  a  part  of  it  was 
within  his  authority,  (g) 


SECTION  VIII. 


REVOCATION  OF  AUTHORITY. 


It  is  a  general  principle,  that  an  authority  is  always  revocable ; 
the  principal  may  at  any  time  put  an  end  to  the  relation  be- 
tween himself  and  his  agent  by  withdrawing  the  authority.  (/?) 


(g)  Feeter  v.  Heath,  II  "Wend.  477. 
But  in  Johnson  v.  Blasdale,  1  Smedes  & 
Marshall,  1,  the  Court  of  Appeals  of 
Mississippi  held  that  if  an  agent  in 
filling  up  a  blank  note  exceed  his  au- 
thority, and  the  third  party  receive  the 
note  with  knowledge  that  the  authority 
has  been  transcended,  the  note  will  not 
be  void  in  toto,  but  only  for  the  excess 
beyond  the  sum  which  was  authorized. 

(/()  Unless  the  authority  be  coupled 
with  an  interest,  or  given  for  valuable  con- 
sideration. It  is  to  be  noticed,  that  many 
cases  which  in  England  might  be  under- 
stood as  examples  of  an  authority  irre- 
vocable at  the  pleasure  of  the  principal, 
because  coupled  with  an  interest,  would 
not  in  this  country  be  classed  under  that 
head,  owing  to  the  general  adoption  here 
of  the  definition  of  a  "  power  coupled 
with  an  interest,"  given  in  Hunt  v.  Kous- 
manier,  8  Wheat. 201,  (secpost.n.  (m.)  ) 
All  such  cases,  it  seems,  can  be  consi- 
dered instances  where  the  authority  can- 
not be  revoked  because  of  the  valuable 
consideration  moving  from  the  agent;  as 
where  tlie  agent  had  begun  to  act  under 
the  authority,  and  would  be  damnified 
by  its  recall,  or  where  the  authority  is 
part  of  a  security.  Walsh  v.  Whitcomb, 
2Esp.  565;  Gaussen  r.  Morton,  10  B. 
&  Cress.  7.31 ;  Hodgson  v.  Anderson,  3 
B.  &  Cress.  842  ;  Broomley  v.  Holland,  7 
Ves.  28;  Marryat  v.  Broderick,  2  M.  & 
W.  371  ;  Eltham  v.  Kingsman,  1  B.  & 
Aid.  683;  Yates  v.  Hoppe,  9  Com. 
Bench  541  ;  Ware,  J.,  United  States  v. 
Jarvis,  Dist.  Court  of  Maine,  1846;  4 
N.  Y.  Leg.  Obs.  301.  And  see  Brown 
i'.  McGran,  14  Pet.  479,  495  ;  Story  on 
Agency,  §  466,  467,  468,  where  the 
opinions  of  the  civilians  are  cited ;  but 
compare  2  Kent,  Comm.  044.  Fabcns 
V.  The  Mercantile  Bank,  23  Pick.  330, 


seems  to  be  the  case  of  a  power  irrevo- 
cable by  the  principal,  both  because  given 
for  consideration  and  because  coupled 
with  an  interest  in  the  sense  of  Chief 
Justice  Marshall.  —  Whether  after  ad- 
vances made  by  a  factor,  his  authority  to 
sell  the  goods  of  the  principal  to  the 
extent  of  those  advances,  is  revocable  at 
the  pleasure  of  the  principal,  is  a  ques- 
tion upon  which  the  authorities  are  not 
agreed.  In  Brown  v.  McGran,  14  Pet. 
479,  it  was  held  that  the  authority  to 
sell  is  not  revocable  in  such  a  case.  The 
decisions  in  the  State  Courts,  so  far  as 
they  go,  appear  to  be  in  substantial 
agreement  with  Brown  v.  McGran.  If 
the  original  authority,  on  consideration 
of  which  the  advances  were  made,  was 
an  authority  to  sell  at  a  limited  price,  it 
seems  plain  that  the  fact  of  the  advances 
does  not  alter  that  authority.  It  con- 
tinues an  authority  to  sell  on  certain 
terms,  and  as  such,  on  the  doctrine  of 
the  Supreme  Coui-t,  may  be  held  irrevo- 
cable to  the  extent  of  the  consideration 
given  for  it,  i.  e.  to  the  amount  of  the 
advances.  Some  of  the  State  courts 
have  gone  a  step  farther  in  this  direction, 
and  held  that  an  authority  to  sell  at  a 
limited  price  may  be  converted  into  a 
general  authority  to  sell,  b}'  the  fact  of 
advances  in  conjunction  with  the  fixct  of 
the  neglect  of  the  consignor,  after  rea- 
sonable notice,  to  repay  the  advances. 
Parker  v.  Brancker,  22  Pick.  40;  Froth- 
ingham  v.  Everton,  12  N.  H.  239.  See 
also  Blot  V.  Boiceau,  3  Comst.  78. — 
This  subject  has  recently  come  before 
the  Court  of  Common  Bench  in  England 
in  Smart  v.  Sandars,  5  C.  B.  895,  where 
it  was  decided  that  a  factor's  authority 
to  sell  is  revocable  at  the  will  of  the 
consignor,  notwithstanding  advances  to 
the  full  value,  and  a  request  of  re- 
[63] 


59-60* 


THE   LAW  OF   CONTRACTS. 


[book  r. 


But  where  third  parties  have  dealt  with  an  agent  clothed 
with  general  powers,  whose  acts  have  therefore  bound  his 
principal,  and  the  principal  revokes  the  authority  he  gave  his 
agent,  such  principal  will  continue  to  be  bound  by  the  farther 
acts  of  his  agent,  unless  the  third  parties  have  knowledge  of 
the  revocation,  or  unless  he  does  what  he  can  to  make  the 
revocation  as  notorious  and  generally  known  to  the  world  as 
was  the  fact  of  the  agency,  (i)  This  is  usually  done  by 
*  advertising,  and  usage  will  have  great  effect  in  determining 
whether  such  principal  did  all  that  it  was  incumbent  on  him 
to  do  to  make  his  revocation  notorious.  And  third  parties 
who  never  dealt  with  such  agent  before  such  revocation,  if 
they  as  a  part  of  the  community  were  justified  in  believing 
such  agency  to  have  existed,  and  had  no  knowledge  and 
no  sufficient  means  of  knowledge  of  the  revocation,  may 
hold  the  principal  liable  for  the  acts  of  the  agent  after  re- 
vocation ;    (j)   as  in  the   case  of  a  partnership,  where   the 


payment  uncomplied  with.  Brown  v. 
McGran  had  been  cited  in  the  argu- 
ment; Wilde,  C.  J.,  delivering  the  judg- 
ment of  the  court,  said,  (p.  918,)  '-In 
the  present  case  the  goods  are  consigned 
to  a  factor  for  sale.  That  confers  an 
implied  authority  to  sell.  Afterwards 
the  factor  makes  advances.  This  is  not 
an  authority  coupled  with  an  interest 
but  an  independent  authority,  and  an 
interest  subsequently  arising.  The  mak- 
ing of  such  an  advance  may  be  a  good 
consideration  for  an  agreement  that  the 
authority  to  sell  shall  be  no  longer  revo- 
cable ;  but  such  an  effect  will  not,  we 
think,  arise  independently  of  agreement. 
"There  is  no  authority  or  principle  in  our 
law,  that  we  are  aware  of,  which  leads 
us  to  think  it  will.  If  such  be  the  law, 
where  is  it  to  be  found  ?  It  was  said  in 
argument,  that  it  was  the  common  prac- 
tice of  factors  to  sell,  in  order  to  repay 
advances.  If  it  be  true  that  there  is  a 
well-understood  practice  with  factors  to 
sell,  that  practice  might  furnish  a  ground 
for  inferring  that  the  advances  were 
made  upon  the  footing  of  an  agreement 
that  the  factor  should  have  an  irrevo- 
cable authority  to  sell,  in  case  the  prin- 
cipal made  default.  Such  an  inference 
might  be  a  very  reasonable  and  proper 
one ;  but  it  would  be  an  inference  of 

[64] 


fact,  and  not  a  conclusion  of  law."  See 
also  Raleigh  v.  Atkinson,  6  M.  &  W. 
670. 

(i)  Hazard  v.  Treadwell,  Stra.  506  ; 

V.  Harrison,  12  Mod.  346 ;  Buller, 

J.,  Salte  V.  Field,  5  T.  R.  215;  Spencer, 
V.  Wilson,  4  Munf.  130 ;  Morgan  v. 
Stell,  5  Binn.  305.  —  Where  an  agency 
constituted  by  writing  is  revoked,  but 
the  written  authority  is  left  in  the  hands 
of  the  agent,  and  he  subsequently  ex- 
hibits it  to  a  third  person  Who  deals  with 
him  as  agent  on  the  faith  of  it  without 
any  notice  of  the  revocation,  the  act  of 
the  agent,  within  the  scope  of  the  au- 
thority, will  bind  the  principal.  Beard 
V.  Kirk,  11  N.  H.  397.  This  necessity 
for  actual  notice  of  revocation,  or  a 
general  notoriety  equivalent  to  notice, 
has  been  held  to  exist  in  full  force  in  the 
case  of  an  authority  implied  from  co- 
habitation, joined  with  the  previous 
sanction  of  acts  of  agency  performed  by 
the  person  held  forth  as  wife.  That  the 
tradesman  furnishing  the  goods  in  such 
a  case  has  knowledge  that  the  woman  is 
only  a  mistress,  does  not  affect  his  right 
to  notice  of  separation.  Ryan  v.  Sams, 
12  Q.  B.  460,  where  Munro  v.  De 
Chemant,  4  Camp.  215,  was  comment- 
ed on. 

(j)  See  last  note. 


CH.   III.] 


AGENTS. 


*61 


dissolution    or   change    of  parties    was  not   properly   made 
known,  (k) 

The  death  of  the  principal  operates  per  se  a  revocation  of 
the  agency.  (/)  But  not  if  the  agency  is  coupled  with  an 
*  interest  vested  in  the  agent,  (m)  Then  it  survives,  and  the 
agent  may  do  all  that  is  necessary  to  realize  his  interest  and 


(1-)  Graham  v.  Hope,  1  Peake,  154; 
Parkin  v.  Carruthers,3  Esp.  248;  Ward- 
well  V.  Haight,  2  Barb.  S.  C.R.  549. 

(!)  Litt.  ^  66 ;  Hunt  i\  Rousmanier, 
8  Wheat.  201 ;  Watson  v.  King,  4  Camp. 
272;  Lepard  v.  Vernon,  2  V.  &  Beam. 
51  ;  Smout  v.  Ilbcrv,  10  M.  &  W.  1  ; 
Rigs  V.  Cage,  2  Huinpb.  Tenn.  R.  350. 
In  Cassiday  v.  McKenzie,  4  W.  &-  Serg. 
282,  it  was  held,  in  opposition  to  the 
current  of  authority,  that  a  payment 
made  by  an  agent,  after  the  death  of  his 
principal,  he  being  ignorant  thereof,  was 
valid  as  an  act  of  agency. — Lunacy  of 
the  principal  revokes,  but  the  better 
opinion  (according  to  Ch. Kent,  2  Comm. 
645,)  is,  that  the  fact  of  the  existence  of 
lunacy  must  have  been  previously  es- 
tablished by  inquisition  before  it  could 
control  the  operation  of  the  power ;  and 
see  Bell's  Comment,  on  the  Law  of  Scot- 
land, §  413.  —  In  Davis  I'.  Lane,  lOXew 
Hamp.  1 56,  it  was  held,  that  the  authority 
of  an  agent,  where  the  agency  is  revoca- 
ble, ceases,  or  is  suspended,  by  the  in- 
sanit}'  of  the  principal,  or  his  incapacity 
to  exercise  any  volition  upon  the  sub- 
ject-matter of  the  agency,  in  consequence 
of  an  entire  loss  of  mental  power  ;  but 
that  if  the  principal  has  enabled  the 
agent  to  hold  himself  out  as  having  au- 
thority, by  a  written  letter  of  attorney, 
or  by  a  previous  employment, 'and  the 
incapacity  of  the  principal  is  not  known 
to  those  who  deal  with  the  agent  within 
the  scope  of  the  authority  he  appears  to 
possess,  the  principal  and  those  who 
claim  under  him,  may  be  precluded  from 
setting  up  the  insanity  as  a  revocation. 
The  court  in  this  case  also  held,  that  the 
principle,  that  insanity  operates  as  a  re- 
vocation, cannot  apply  where  the  power 
is  coupled  with  an  interest,  so  that  it  can 
be  exercised  in  the  name  of  the  agent. 
Whether  it  is  applicable  to  the  case  of  a 
power  which  is  part  of  a  security,  or 
executed  for  a  valuable  consideration, 
was  left  undecided.  See  Jones  v.  Noy, 
2  M.  &  K.  125;  Waters  v.  Taylor,  2 
"Ves.  &  B.  301 ;  Iluddleston's  case,  2 
Ves.  Sen.  34,  1  Swanst.  514,  n. ;  Sayer 
6* 


r.  Bennett,  1  Cox's  Cas.  107. — Bank- 
ruptcy of  the  principal  revokes  the  au- 
thority. Parker  v.  Smith,  16  East,  382  ; 
Minett  v.  Forrester,  4  Taunt,  541.  De- 
fendant being  in  the  employment  of  J. 
in  his  trade,  sold,  bona  fide ^  some  goods 
belonging  to  J.,  after  J.  had  committed 
an  act  of  bankruptcy,  of  which  defend- 
ant was  ignorant.  The  sale  was  more 
than  two  months  before  the  commission 
issued.  Defendant  acted  under  a  general 
authority.  The  assignee  brought  trover. 
Hekl,  on  a  plea  of  not  guilty,  that  de- 
fendant, having  sold  under  a  general 
authority  only,  had  been  guilty  of  a  con- 
version. Pearson  v.  Graham,  6  Ad.  & 
El.  899. — Marriage  of  /eme  sole  principal 
revokes.  White  v.  Giff'ord,  1  Rol.  Abr. 
Authoritie  E.  pi.  4 ;  Charnley  v.  Win- 
stanley,  5  East,  266. 

(m)  Hunt  V.  Rousmanier,  8  Wheat. 
201  ;  Beraen  i\  Bennett,  1  Gaines's  Cas. 
1 ;  Smyth" u.  Craig,  3  W.  &  S.  14  ;  Cas- 
siday V.  McKenzie,  4  W.  &  S.  282; 
Knapp  r.  Alford,  10  Paige.  205.  — The 
important  question  is  what  constitutes 
an  authority  coupled  with  an  interest ; 
and  here  there  is  some  diversity  in 
judicial  definition.  In  Hunt  v.  Rous- 
manier, 8  Wheat.  201,  it  was  held 
{Marshall,  C.  J.,  giving  the  opinion  of 
the  court)  that  the  interest  which  can 
protect  a  power,  after  the  death  of  the 
person  who  creates  it,  must  be  an  inte- 
rest in  the  thinr/  itsel/on  which  the  power 
is  to  be  exercised,  and  not  an  interest  in 
that  which  is  produced  by  the  exercise 
of  the  power.  —  In  Smart  v.  Sandars,  5 
C.  B.  895,  917,  Wilde,  C.  J.,  said  tliat 
"  AVhere  an  agreement  is  entered  into 
on  a  sufficient  consideration,  whereby 
an  authority  is  given  for  the  purpose  of 
securing  some  benefit  to  the  donee  of 
the  authority,  such  an  authority  is  irre- 
vocable. This  is  what  is  usually  meant 
by  an  authority  coupled  with  an  inte- 
rest:"—  that  is,  irrevocable  except  by 
the  death  of  the  principal ;  for  the  dic- 
tum, as  the  whole  case  shows,  is  to 
be  taken  in  connection  with  the  doc- 
trine, understood  still  to  prevail  in  Eng- 

[65] 


62*  THE   LAW   OF   CONTRACTS.  [bOOK   I. 

make  it  beneficial  to  himself;  nor  is  such  agency  revocable  at 
the  pleasure  of  the  principal  in  his  lifetime,  (n)  and  if  the 
agent  dies  it  passes  over  to  his  representatives,  (o)  It  is,  in 
such  case,  an  important  if  not  a  decisive  question,  whether 
the  act  authorized  could  be  performed  by  the  agent  in  his  own 
name,  or  only  by  him  as  an  agent,  and  in  the  name  of  the 
principal.  In  the  first  case,  if  an  interest  were  coupled  with 
the  agency,  the  authority  would  survive  the  death  of  the  prin- 
cipal, and  the  agent  might  perform  the  act  in  the  same  man- 
ner after  the  death  as  before.  In  the  latter  case,  as  he  could 
no  longer  use  the  name  of  the  principal,  for  the  obvious  reason 
that  one  who  is  dead  can  no  longer  act,  it  would  seem  that 
his  right  must  be  limited  to  that  of  requiring  the  representa- 
tives of  the  deceased  to  perform  the  act  necessary  for  his  pro- 
tection. 

*  SECTION  IX. 

HOW   THE    PRINCIPAL   IS   AFFECTED    BY   THE    MISCONDUCT   OF   HIS 

AGENT. 

A  principal  is  liable  for  the  fraud  or  misconduct  of  his 
agent,  so  far,  that,  on  the  one  hand,  he  cannot  take  any  bene- 
fit from  any  misrepresentation  fraudulently  made  by  his  agent, 
although  the  principal  was  ignorant  and  innocent  of  the 
fraud ;  (p)  and  on  the  other  hand,  if  the   party  dealing  with 

land,  on  the  authority  of  Lord  Ellen-  5G5 ;  Allen  v.  Davis,  8  Eng.  (Ark.)  29. 

borough,  in  Watson  v.  King,   (4  Camp.  (o)  2  JCent,  Comm.  643. 

272,)   that  death  revokes  even  a  power  (/>)  Atty.-Gen.  v.  Ansted,  12  M.  &,  W. 

coupled   with   an    interest.      See  ante,  .520  ;  Fitzherbert  i'.  Mather,  1  T.  R.  12  ; 

note  (A.)  Seaman  v.  Fonereau,  2  Stra.  1183  ;  Fitz- 

A  warrant  of  attorney  to  confess  siramons  u.  Joslin,  21  Verm.  129.  —  "I 
judgment  is  not  revocable ;  and  though  have  no  doubt  that  if  an  agent  of  a 
determinable  by  death,  yet,  at  common  party,  say  of  Mr.  Aitwood  in  this  case, 
law,  as  a  judgment  entered  up  during  without  his  knowledge,  made  a  wilfully 
any  term,  or  the  subsequent  vacation,  false  representation  to  the  British  Iron 
related  to  the  first  day  of  such  term,  a  Company,  upon  which  representation 
warrant  of  attorney  might  be  made  they  acted,  '  adhibentes  Jidem,''  and  on 
available  after  the  death  of  the  princi-  that  confidence  had  formed  a  contract ; 
pal,  by  entering  up  judgment  within  the  — I  have  no  hesitation  whatever  in  say- 
term  and  vacation  in  which  the  death  ing,  that  against  that  contract,  equity 
occurred.  Lord  Holt,  Oades  v.  Wood-  would  relieve  just  as  mucli  as  if  there 
ward,  1  Salk.  87  ;  Fuller  v.  Jocclyn,  2  was  the  scienter  of  the  principal  proved  ; 
Stra.  882 ;  Heapj  v.  Parris,  6  T.  li.  368.  because  it  is  not  a  question  of  criminal 

Cn)  Gaussen  v.  Morton,  10  B.  &  Ci'css.  responsibility  which  is  here  raised  by  the 

731;   Walsh  v.  Whitcomb,  2  Esp.  R.  facts.     The  agent  could  not  commit  the 
[66] 


CH.   III.] 


AGENTS. 


*63 


the  agent  suffers  from  such  fraud,  the  principal  is  bound  to 
make  him  compensation  for  the  injury  so  sustained ;  (^7)  and 
this  although  the  principal  be  innocent,  (r)  provided  the  agent 
*  acted  in  the  matter  as  his  agent,  and  distinctly  within  the 
line  of  the  business  intrusted  to  him.  (s)  And  though  there 
be  no  actual  fraud  on  the  part  of  the  agent,  yet  if  he  makes  a 
false  representation  as  to  matter  peculiarly  within  his  own 
knowledge  or  that  of  his  principal,  and  thereby  gets  a  better 
bargain  for  his  principal,  such  principal,  although  innocent, 
cannot  take  the  benefit  of  the  transaction,  (t)     But  the  third 


principal  to  any  criminal  purpose,  if  the 
principal  did  not  know  it,  and  liad  not 
either  given  him  an  authority  or  adopted 
his  act  when  he  did  know  it.  But  as  to 
the  civil  effect  of  vitiating  the  contract 
made  upon  that  false  representation,  I 
have  no  doubt  whatever  that  it  would 
vacate  it  just  as  much,  with  the  igno- 
rance of  the  principal,  as  if  he  were 
charged  with  knowing  it,  and  as  if  the 
agent  had  been  an  agent  for  this  pur- 
pose." Lord  Brougham  in  Attwood  v. 
Small,  6  C.  &  Fin.  448.—  See  also  Tay- 
lor V.  Green,  8  C.  &  Payne,  316 ;  Olm- 
sted I'.  Hotailing,  1  Hill,  (N.  Y.)  317  ; 
Veazie  v.  "Williams,  8  How.  134,  3 
Story,  611. 

iq)  Holt,  C.  J.,  in  Hern  v.  Nichols,  1 
Salk.  289,  and  EUenborough,  C.  J.,  in 
Crockford  i-.  Winter,  1  Camp.  124,  lay 
down  the  broad  doctrine  that  a  principal 
is  answerable  civililer,  though  not  crimi- 
naliter,  for  the  fraud  of  his  agent.  Jeffrey 
V.  Bigelow,  13  Wend.  518,  illustrates  the 
general  doctrine.  There  the  defendants 
had  been  in  partnership  with  one  Hunt, 
for  speculation  in  sheep,  they  contri- 
buting funds,  and  he  time  and  services. 
Hunt  purchased  some  sheep  diseased 
with  the  scab,  knowing  the  fact,  and 
mixed  them  with  a  larger  number  belong- 
ing to  the  partnership.  Subsequently 
Hunt  assigned  his  interest  to  defendants, 
who  employed  S.  to  sell  the  sheep.  The 
flock  was  purchased  from  S.  by  the 
plaintiff,  and  mixed  with  the  sheep  he 
before  owned.  The  scab  broke  out 
among  them  and  destroyed  many  sheep, 
of  his  old  stock  as  well  as  of  those  pur- 
chased from  ,S. ;  and  considerable  ex- 
pense was  incurred  in  the  attempt  to 
arrest  the  disease.  S.  was  aware  of  the 
infected  condition  of  the  flock,  but  no 
actual  knowledge  was  proved  upon  the 


defendants.  Held,  that  plaintiff  was 
entitled  to  maintain  his  action,  and 
could  recover  damages  for  the  loss  both 
of  the  shec])  purcliased,  and  of  the  other 
sheep  receiving  the  infection,  and  all 
other  damages  necessarily  and  naturally 
flowing  from  the  act  of  the  defendants' 
agent.  Semble,  the  liability  of  the  de- 
fendants would  have  been  the  same  if 
S.  had  been  ignorant  of  the  state  of  the 
flock  ;  the  knowledge  of  Hunt  when  he 
bought  the  diseased  sheep  being  con- 
structively the  knowledge  of  his  part- 
ners, and  his  assignment  of  his  interest 
to  the  defendants,  before  the  sale  to  the 
plaintiff,  making  no  difference  as  to 
their  responsibility.  See  also  Johnston 
V.  South  Western  Railroad  Bank,  2 
Strob.  Eq.  263  ;  Mitchell  v.  Mims,  8 
Tex.  6. 

(r)  Irving  v.  Motley,  7  Bing.  543  ; 
Doe  V.  Martin,  4  T.  R.  39,  66  ;  Edwards 
V.  Footner,  1  Camp.  530.  Where  an 
attoniey's  clerk  had  simulated  the  court 
seal  upon  a  writ,  by  taking  an  impres- 
sion from  the  seal  upon  another  writ, 
the  writ  and  all  proceedings  thereon 
were  set  aside,  and  the  attorney  although 
personally  blameless  was  compelled  to 
pay  the  costs.  Dunkley  v.  Farris,  20  E. 
L.  &  E.  285. 

(s)  Peto  V.  Hague,  5  Esp.  135  ;  Huck- 
man  v.  Fernie,  3  M.  &  W.  505.  —  In 
Woodin  V.  Burford,  2  Cr.  &  Mee.  392, 
Bayley,  B.,  said,  "  What  is  said  by  a  ser- 
vant is  not  evidence  against  the  master, 
unless  he  has  some  authority  given  him  to 
make  the  representation."  It  is  not  meant, 
as  the  case  shows,  that  there  must  be 
an  express  authority  to  make  that  par- 
ticular representation ;  but  the  authority 
may  be  implied  as  incident  to  a  general 
author!  tv. 

(t)  Willes  V.  Glover,  4  B.  &  Pul.  14  ; 
[67] 


64*  THE   LAW   OF   CONTRACTS.  [BOOK   I. 

party  may  rescind  the  contract,  and  recover  back  any  money 
he  may  have  paid  the  principal,  by  reason  of  his  confidence 
in  such  misrepresentation. 

SECTION  X. 
OF   NOTICE   TO   AN   AGENT. 

A  principal  is  affected  by  notice  to  his  agent,  respecting 
any  matter  distinctly  within  the  scope  of  his  agency,  when 
the  notice  is  given  before  the  transaction  begins,  or  before 
it  is  so  far  completed  as  to  render  the  notice  nugatory,  (u) 
The  notice  to  the  agent  may  be  implied  as  well  as  express. 
Knowledge  obtained  by  the  agent  in  the  course  of  that  very 
transaction  is  notice ;  and  it  has  been  said,  that  knowledge 
obtained  in  another  transaction,  but  so  short  a  time  previous 
*  that  the  agent  must  be  presumed  to  recollect  it,  is  also  notice 
affecting  the  principal ;  (v)  but  this  is  questionable.  This 
matter  has  been  most  discussed  in  cases  where,  in  conse- 
quence of  the  employment  of  solicitors  or  counsel  in  the  pur- 
chase of  real  estate,  the  question  has  arisen  how  far  the  cli- 
ents are  aflected  with  notice  of  incumbrances,  or  defects  of 
title,  which,  by  a  more  or  less  strong  presumption,  must  be 
taken  to  have  come  to  the  knowledge  of  their  agents.  Two 
propositions  seem  to  be  well  settled  :  the  first,  that  the  notice 
to  the  solicitor,  to  bind  the  client,  must  be  notice  in  the  same 
transaction  in  which  the  client  employs  him,  or  at  least,  dur- 

Ashhurst,  J.,  Fitzherbert  v.  Mather,  1  T.  respect  to  her  title ;  especially  as  she 
R.  16;  Carpenter  v.  Amer.  Ins.  Co.  1  had  paid  the  consideration  for  the  con- 
Story,  57.  And  it  seems  the  purchaser,  veyance  out  of  her  separate  estate.  Sny- 
without  rescinding  the  contract,  may  der  v.  Sponable,  1  Hill,  (N.  Y.)  567: 
maintain  case  for  deceit  against  the  S.  C.  affirmed  in  error.  7  Hill,  427.  It 
principal.  Fuller  v.  Wilson,  3  Q.  B.  58.  seems  a  principal  is  chargeable  with  no- 
(u)  Bank  of  the  United  States  v.  Da-  tice  of  what  is  known  to  a  sub-agent,  how 
vis,  2  Hill,  (N.  Y.)  R.  451.  —  Notice  to  many  degrees  soever  removed,  such  sub- 
one  of  several  joint  purchasers,  whatever  agent  being  appointed  by  his  authority, 
be  the  nature  of  the  estate  they  take,  is  See  Boyd  v.  Vanderkemp,  1  Barb.  Ch. 
not  in  general  notice  to  the  rest,  unless  287.  —  As'to  the  time  when  notice  may 
he  who  receives  the  notice  be  their  be  given,  see  Tourville  i\  Naish,  3  P. 
agent ;  and  where  notice  was  given  to  a  Wms.  307  ;  Story  v.  Lord  Windsor,  2 
husband,  at  the  time  of  taking  a  convey-  Atk.  630 ;  More  v.  Mayhow,  1  Ch.  Cas. 
ance  of  lands  to  himself  and  wife,  of  a  34  ;  Wigg  v.  Wigg,  1  Atk.  384. 
prior  unregistered  mortgage,  it  was  held  (w)  Lord  Langdale,  M.  R.,  Hargreaves 
not  to  operate  as  notice  to  the  wife,  so  v.  Rothwell,  1  Keen,  159.  And  see 
as  to  give  the  mortgage  a  preference  in  Mountford  v.  Scott,  3  Madd.  34. 
[68] 


CH.   III.]  AGENTS.  *65 

ing  the  time  of  the  solicitor's  employment  in  that  transac- 
tion; (iv)  the  other,  that  where  a  purchaser  employs  the  same 
solicitor  as  the  vendor,  he  is  affected  with  notice  of  whatever 
that  solicitor  had  notice  of,  in  his  capacity  of  solicitor  for  either 
vendor  or  purchaser,  in  the  transaction  in  which  he  is  so  em- 
ployed, (x)  The  first,  it  is  evident,  is  so  far  qualified  by  the 
second,  that  where  the  circumstance  of  the  solicitor's  being 
employed  for  two  parties  is  in  the  case,  a  purchaser,  in  the 
language  of  Sir  J.  Wigram,  may  be  affected  with  notice-  of 
what  the  solicitor  knew  as  solicitor  for  the  vendor,  although 
as  solicitor  for  the  vendor  he  may  have  acquired  his  know- 
ledge before  he  was  retained  by  the  purchaser — whatever  the 
solicitor,  during  the  time  of  his  retainer,  knows  as  solicitor  for 
either  party,  may  possibly  in  some  cases  affect  both,  without 
*  reference  to  the  time  when  his  knowledge  was  first  acquired. 
Any  other  qualification  of  the  principle  limiting  the  client's 
liability  to  notice  acquired  in  the  same  transaction,  the  dis- 
tinguished judge  referred  to  does  not  acknowledge,  (xx)  If, 
however,  one  assume  to  act  as  agent  of  another,  and  cause 
an  act  to  be  done  for  him  of  which  the  latter  afterwards 
takes  the  benefit,  he  must  take  it  charged  with  notice  of  such 
matters  as  appear  to  have  been  at  the  time  within  the  know- 
ledge and  recollection  of  the  agent.  («/) 

On  the  other  hand,  knowledge  possessed  by  a  principal 


(w)  Wigram,  V.  C-,  Fuller  v.  Ben-  no  man  can  be  supposed  always  to  cany 
nett,  2  Hare,  402,  403.  And  Lord  Hard-  in  his  mind  the  recollection  of  former 
wicke  in  declaring  the  same  doctrine,  in  occurrences  ;  and  moreover,  in  the  case 
Worsley  v.  Scarborough,  3  Atk.  392,  of  the  attorney  or  counsel  it  might  be 
said  it  would  be  very  mischievous  if  it  contrary  to  his  duty  to  reveal  the  confi- 
were  otherwise,  for  the  man  of  most  dential  communications  of  his  client, 
practice  and  greatest  eminence  would  To  visit  the  principal  with  consti'uctive 
then  be  the  most  dangerous  to  employ,  notice,  it  is  necessary  that  the  know- 
And  see  Warrick  v.  Warrick,  3  Atk.  294.  ledge  of  the  agent  or  attorney  should  be 
—  In  Hood  V.  Fahnestock,  8  Watts,  489,  gained,  in  the  course  of  the  same  trans- 
it was  held,  that  if  one  in  the  course  of  action  in  which  he  is  employed  by  his 
his  business  as  agent,  attorney,  or  coun-  client."  Bracken  v.  Miller,  4  W.  &  Serg. 
sel  for  another,  obtain  knowledge  from  102,  S.  P. 

which  a  trust  would   arise,  and  after-  (x)  Wigram,  V.  C,  Fuller  v.  Bennett, 

wards  becomes  the  agent,  attorney,  or  2  Hare,  402. 

counsel  of  a  subsequent  purchaser  in  an  (xx)  See  Judgment,  Fuller  v.  Bennett, 

independent  and  unconnected   transac-  2  Hare,  402,  where  the  cases  are  review- 

tion,  his  previous  knowledge  is  not  no-  ed  and  much  discussed, 

tice  to  such  other  person  for  whom  he  {y)  Hovey  v.   Blanchard,    13  N.  H. 

acts.    "  The  reason  is  [per  Sergeant,  J.  145. 


delivering  the  opinion  of  the  court,]  that 


[69] 


66*  THE  LAW   OF   CONTRACTS.  [BOOK  I. 

affects  a  transaction,  although  the  transaction  took  place 
through  an  agent  to  whom  the  knowledge  w^as  not  commu- 
nicated, (jjij)  As,  if  a  principal  knew  of  defences  to  a  pro- 
missory note  available  only  against  a  purchaser  with  know- 
ledge, and  this  principal  bought  the  note  by  an  agent,  who 
had  no  knowledge  of  these  defences,  they  might  still  be 
enforced  against  the  principal. 

Much  question  has  arisen  as  to  the  effect  on  a  corporation, 
of  notice  to  one  who  is  a  member  or  officer  of  it.  By  some 
it  is  held  that  the  notice  must  be  made  formally  to  the  corpo- 
ration, [z)  and  it  has  been  contended  on  the  other  hand,  that 
the  notice  is  enough  if  given  to  any  director,  or  any  member 
of  a  board  which  manages  the  affairs  of  the  corporation,  (a) 
We  consider  these  views  extreme  and  inaccurate;  and  should 
state  as  the  rule  of  law  that  a  notice  to  a  corporation  binds 
it,  only  when  made  to  an  officer,  whether  president,  director, 
•trustee,  committee-man,  or  otherwise,  whose  situation  and 
relation  to  the  corporation  imply  that  he  has  authority  to  act 
for  the  corporation  in  the  particular  matter  in  regard  to  which 
the  notice  is  given,  (b) 

SECTION  XI. 
OF     SHIPMASTERS. 

A  master  of  a  ship  has,  by  the  policy  of  the  law-merchant, 

(yy)  In  Willis  v.  Bank  of  Eng.  4  A.  italics   is   not  an  essential  part  of  the 

&  El.  21,  39,  the  doctrine  of  notice  was  rule.      Certainly,   Mayhcw    v.    Earaes, 

thus  stated  by  Lord  Denman:  "  The  ge-  (3  B.  &  Cress.  601,)  cited  by  tlie  Icarn- 

neral  rule  of  law  is  that  notice  to  the  ed  chief  justice,  is  very  far  from  cstab- 

principal  is  notice  to  all  his  agents.  May-  lishing  the  naked  doctrine  that  notice 

hew  V.  Eames  ;  at  any  rate  if  there  be  to  the  principal  is  notice  eo  instanti  to 

reasonable  time,  as  there  was  here,  ybr  the  the  agent. 

principal  to  communicate  that  notice  to  his         (z)  Louisiana  State  Bank  v.  Scnecal, 

agents,   before  the  event  ichich  raises  the  13  Louis.  Rep.  525. 
question  happens.  .  .  We  have  been  press-         (a)  Bank  of  U.  S.  v.  Davis,  2  Hill, 

ed  with  the  inconvenience  of  requiring  (N.Y.)  451 ;  North  River  Bank  v.  Aymar, 

every  trading  company  to  communicate  3  Hill  (N.  Y.)  262. 
to   their   agents   everywhere    whatever        (b)  See  Powles  v.  Page,  3  C.  B.  16; 

notices  they  may  receive;  but  the  argu-  Porter y.  Bank  of  Rutland,  19  Vermont, 

ment  ab  inconvenienti  is  seldom  entitled  R.  410,  425  ;  Fulton  Bank  v.  N.  Y.  &  S. 

to  much  weight  in  deciding  legal  ques-  Canal  Co.  4  Paige,  127  ;  National  Bank 

tions;  and,   if  it   were,   other  inconve-  «.  Norton,  1  Hill  (N.Y.)  R.  575;  The 

niences  of  a  more  serious  nature  would  New   Hope,   &c.   Co.   v.  The  Phoenix 

obviously  grow  out  of  a  different  deci-  Bank,   3    Comst.    156,    166  ;  Story  on 

sion."    It  may  be  considered  worth  in-  Agency,  §§  140  a- 140  d. 
quiry  whether  the  clause  we  liave  put  in 
[70] 


CH.  III.]  AGENTS.  *67 

some  authority  not  usually  implied  in  other  cases  of  general 
agency,  (c)  Thus,  he  may  borrow  money,  if  the  exigencies 
and  necessities  of  his  position  require  it,  and  make  his  owner 
liable,  and  pledge  the  ship  (by  bottomry,  for  the  most  part) 
for  the  repayment,  (d)  But  this  authority  does  not  usually 
extend  to  cases  where  the  principal  can  personally  act>  as 
in  the  home  port,  (e)  or  in  a  port  where  the  owner  has  a 
specific  agent  for  this  purpose,  (/)  and  by  parity  of  reason 
not  in  a  port  so  near  the  owner's  home  that  he  may  be  con- 
sulted, without  inconvenience  and  injurious  delay,  (^g-)  So, 
too,  under  such  circumstances,  he  may,  without  any  special 
authority,  sell  the  property  intrusted  to  him,  in  a  case  of 
extreme  necessity,  and  in  the  exercise  of  a  sound  discretion. 
Nor  need  this  necessity  be  actual,  in  order  to  justify  the  mas- 
ter and  make  the  sale  valid.  If  the  ship  was  in  a  peril, 
which,  as  estimated  from  all  the  facts  then  within  his  means 
of  knowledge,  was  imminent,  and  made  it  the  most  prudent 
course  to  sell  the  ship  as  she  was,  without  further  endeavors 
*to  get  her  out  of  her  dangerous  position,  this  is  enough,  and 
the  sale  is  justified  and  valid,  although  the  purchasers  suc- 
ceed in  saving  her,  and  events  prove  that  this  might  have 
been  done  by  the  master.  For  a  sudden  and  entire  change 
of  wind  or  weather,  or  some  other  favorable  circumstance 
which  no  one  at  the  time  could  have  rationally  expected, 
might  be  the  means  of  her  safety  ;  and  the  powers  and  duty 
of  the  master  must  not  depend  on  matters  which  are  alike 
beyond  control  and  foresight.  (A) 

(c)  Whether  an  action  may  be  main-  ton  v.  The  Eandolph,  Gilp.  E.  457 ; 
tained  against  an  owner,  which  is  Ship  Lavinia  v.  Barchiy,  1  Wash.  C.  C. 
grounded  on  the  exercise  of  this  peculiar  R.  49  ;  Lord  Ahinger,  Arthur  v.  Barton, 
and  extraordinary  authority  by  one  who  6  M.  &  W.  138. 

was  not  the  master  on  the  register,  but  (/)  Pritchard  v.  Schooner  Lady  Ho- 

by  appointment  of  the  owner  had  vir-  ratia.  Bee's  Ad.  R.  167. 

tually  acted  as  master,  qucere :  see  Stone-  (<7)  Johns  v.  Simons,  2  Q.  B.  425  ;  Ar- 

house  r.  Gent,  2  Q.  B.  431  n.  thur  v.  Barton,  6  M.  &  W.  138  ;  Mack- 

(d)  Barnard  v.  Bridgeman,  Moore,  intosh  i;  Mitcheson,  4  Exch.  175;  Bel- 
918  ;  Weston  v.  Wright,  7  M.  &  W.  don  r.  Campbell,  20  Law  J.  Rep.  N.  S. 
396  ;  Arthur  v.  Barton,  6  M.  &  W.  138 ;  Exch.  342,  6  Law  &  Eq.  R.  473,  where 
The  Gratitudine,  3  Rob.  Ad.  R.  240;  Robinson  v.  Lyall,  7  Price,  592,  was 
Stainbank  v.  Penning,  6  E.  L.  &  E.  412  ;  questioned. 

The  Fortitude,  3  Summer,  R.  228.  (h)  The  Brig  Sarah  Ann,  2  Sumner, 

(e)  Lister  v.  Baxter,  Stra.  695  ;  Pat-    206  ;  Hunter  v.  Parker,  7  M.  &  W.322. 

[71] 


67 


THE   LAW   OF   CONTRACTS. 


[book  I. 


SECTION  XII. 

OF   AN    ACTION   AGAINST    AN    AGENT    TO    DETERMINE    THE    RIGHT 
OF   A   PRINCIPAL. 


It  is  a  rule  of  law  in  respect  of  all  agencies,  that  where 
money  is  paid  to  one  as  agent,  to  which  another  as  principal 
has  color  of  right,  the  right  of  the  principal  cannot  be  tried 
in  an  action  brought  by  the  party  paying  the  money  against 
the  agent  as  for  money  had  and  received  to  the  use  of  such 
party ;  but  such  action  should  be  brought  against  the  princi- 
pal, (i)     For  a  party  who  deals  with  an  agent  (acting  as 


(i)  Bamford  v.  Shuttleworth,  11  A. 
&  El.  926;  Sadler  v.  Evans,  4  Burr. 
1984;  Horsfall  v.  Handley,  8  Taunt. 
136;  Costisan  v.  Newland,  12  Barb. 
456.  Yet  if  notice  not  to  pay  over  have 
been  given,  then  the  agent  may  be  sued. 
Lord  Mansfield,  Sadler  v.  Evans,  4  Burr. 
1986  ;  Edwards  v.  Hodding,  5  Taunt. 
815  ;  Hearsey  v.  Pruyn,  7  Johns.  R.  179  ; 
Elliott  V.  Swartwout,  10  Peters,  137  ; 
Bend  v.  Hoyt,  13  Peters,  263  ;  La 
Farge  v.  Kneeland,  7  Cow.  456.  See 
however  as  to  the  liability  of  col- 
lectors of  tlie  customs,  Cary  v.  Cur- 
tis, 3  Howard,  Sup.  Ct.  R.  236.— 
And  in  some  cases  it  has  been  held 
that  even  without  notice,  the  agent  may 
be  held  liable  for  money  had  and  re- 
ceived, if  he  have  not  actually  paid  over 
the  money  to  the  principal,  or  done 
something'  equivalent  to  it:  and  the 
mere  entering  the  amount  to  the  credit 
of  the  principal,  or  making  a  rest,  is  not 
equivalent  to  payment  over.  Bullcr  v. 
Harrison,  Cowper,  565 ;  Cox  v.  Pren- 
tice, 3  M.  &  Sel.  344.  But  upon  these 
cases  Mr.  Smith  comments  as  follows : 
"  It  will  be  observed  that  in  neither  of 
these  cases  could  the  principal  himself 
ever  by  possibility  have  claimed  to  re- 
tain tlie  money  for  a  single  instant,  had 
it  reached  his  hands,  the  payment  hav- 
ing been  made  by  the  plaintiff  under 
pure  mistake  of  facts,  and  being  void 
ah  initio,  as  soon  as  that  mistake  was 
discovered,  so  that  the  agent  would  not 
have  been  estopped  from  denying  his 
principal's  title  to  the  money,  any  more 
than  the  factor  of  J.  S.  of  Jamaica,  who 
[72] 


has  received  money  paid  to  him  under 
the  supposition  of  his  employer  being 
J.  S.  of  Trinidad,  would  be  estopped 
from  retaining  that  money  against  his 
employer,  in  order  to  return  it  to  the 
person  who  paid  it  to  him.  Besides 
which,  in  Buller  i\  Harrison,  had  the 
agent  paid  the  money  he  received  from 
the  underwriter  in  discharge  of  the  foul 
loss,  over  to  his  principal,  he  would  have 
rendei-ed  himself  an  instrument  of  fraud 
which  no  agent  can  be  obliged  to  do. 
Except  in  such  cases  as  these,  the 
maxim  respondeat  superior  has  been  ap- 
plied, and  tlie  agent  held  responsible 
to  no  one  but  his  principal."  Merc. 
Law,  B.  1,  c.  5,  sec  7.  In  Snowdon 
V.  Davis,  1  Taunt.  359,  a  sheriff  liad 
issued  a  warrant  on  mesne  process,  to 
distrain  the  goods  of  A.  ;  the  bailiff 
levied  the  debt  upon  the  goods  of  B., 
and  paid  it  over.  Beld,  that  money 
had  and  received  would  lie  against  the 
bailiff.  Mansfield,  C.  J.,  said,  "  The 
bailiff  pays  the  money  over  to  the  she- 
riff, and  the  sheriff  to  the  exchequer,  and 
it  is  objected,  that  as  it  has  been  paid 
over,  the  action  for  money  had  and  re- 
ceived does  not  lie  against  the  bailiff; 
and  this  is  compared  to  the  case  of  an 
agent,  and  the  authorities  are  cited  of 
Sadler  v.  Evans ;  Campbell  v.  Hall,  1 
Cowp.  204  ;  Buller  I'.  Harrison,  2  Cowp. 
565,  and  several  others.  lu  the  case  of 
Sadler  v.  Evans,  the  money  was  paid  to 
the  agent  of  Lady  Windsor  for  Lady 
Windsor's  use ;  in  that  of  Buller  v.  Har- 
rison the  money  was  paid  to  the  broker, 
expressly  for  the  benefit  of  the  assured. 


CH.  III.] 


AGENTS. 


68 


such,  and  within  the  scope  of  his  authority)  has,  in  general, 
no  right  to  separate  him  from  his  principal  and  hold  him 
liable  in  his  personal  capacity.  The  agent  owes  an  account 
of  his  actions  to  his  principal,  and  that  he  may  be  able  to 
render  that  account,  the  law,  except  under  special  circum- 
stances, refuses  to  impose  upon  him  a  duty  to  any  third 
party. 

We  here  close  all  that  was  proposed  to  be  said  of  agents 
as  parties  to  contracts  entered  into  by  them  in  their  repre- 
sentative capacity.  The  relation  between  agent  and  prin- 
cipal constitutes  itself  a  distinct  contract,  and  the  considera- 
tions growing  out  of  it  would,  in  a  strictly  accurate  division, 
find  a  place  in  that  part  of  this  work  which  treats  of  the  Sub- 
ject-Matter  of  contracts.  But  it  has  been  deemed  expedient 
in  this  instance,  as  in  some  others,  to  sacrifice  logical  order 
to  the  convenience  of  the  reader ;  and  such  observations  as 
seem  to  be  required  by  the  contract  of  Agency,  properly  so 
called,  are  subjoined  in  the  following  section. 


In  Pond  V.  Underwood,  the  money  was 
paid  for  the  use  of  the  administrator. 
Can  it  in  this  case  be  said  with  any  pro- 
priety, that  the  money  was  paid  to  the 
bailiff  for  the  purpose  of  paying  it  to  the 
sheriff,  or  to  the  intent  that  the  sheriff 
might  pay  it  into  the  exchequer  ?  The 
plaintiff  pays  it  under  the  terror  of  pro- 
cess, to  redeem  his  goods,  not  with  an 
intent  that  it  should  be  delivered  over 
to  any  one  in  particular."  But  this  case 
has  been  regarded  by  high  authority  as 
estabhshing  a  stronger  doctrine  than 
that  on  which  Sir  James  Mansfield  ap- 
pears to  have  placed  it.  In  Smith  v. 
Sleap,  12  M.  &  W.  588,  Parke,  B.,  re- 
ferring to  Snowdon  v.  Davis,  said,  "  It 
was  there  held  that  a  party  who  had  re- 
ceived money  wrongfully  could  not  set 
up  as  a  defence  that  he  had  received  it 
for,  and  paid  it  over  to,  a  third  per- 
son." In  the  same  case  a  dictum  of  the 
Court  of  Exchequer  is  reported,  to  the 


effect  that  a  payment  to  A.  expressly  as 
the  agent  of  B.,  for  the  purpose  of  re- 
deeming goods  wrongfully  detained  by 
B.,  and  a  receipt  by  A.  expressly  for  B. 
would  make  a  case  upon  which  an  ac- 
tion against  A.  for  money  had  and  re- 
ceived, could  be  maintained.  And  in 
the  case  of  Parker  v.  Bristol  and  Exeter 
Railway,  7  E.  L.  &  E.  528,  where  the 
defendants  had  refused  to  deliver  the 
plaintiff's  goods  until  he  paid  an  excess 
over  the  proper  amount  due  for  freight 
money,  it  was  held  that  he  might  main- 
tain an  action  to  recover  this  excess 
from  the  defendants  although  they  re- 
ceived a  portion  of  it  only  as  agents  for 
the  Great  Western  Railway  Company; 
the  principle  being  "  that  an  action  for 
money  had  and  received  lies  to  recover 
back  money  which  has  been  obtained 
through  compulsion  even  although  it 
has  been  received  by  an  agent  who  act- 
ed for  the  principal." 


VOL.  I. 


[73] 


69*  -  70*  THE  LAW   OF   CONTRACTS.  [BOOK  I. 


SECTION  XIII. 

THE  RIGHTS  AND   OBLIGATIONS  OF  PRINCIPAL  AND  AGENT  AS  TO 

EACH   OTHER. 

An  agent  with  instructions  is  bound  to  regard  them  in 
every  point ;  nor  can  he  depart  from  them,  without  making 
*  himself  responsible  for  the  consequences,  (j)  If  he  have  no 
instructions,  or  indistinct  or  partial  instructions,  his  duty  will 
depend  upon  the  intention  and  understanding  of  the  parties. 
This  may  be  gathered  from  the  circumstances  of  the  case, 
and  especially,  from  the  general  custom  and  usage  in  relation 
to  that  kind  of  business,  (k)  But  he  cannot  defend  himself 
by  showing  a  conformity  to  usage,  if  he  has  disobeyed  posi- 
tive instructions.  If  loss  ensue  from  his  disregard  to  his  in- 
structions, he  must  sustain  it ;  if  profit,  he  cannot  retain  it, 
but  it  belongs  to  his  principal.  (/) 

A  principal  discharges  his  agent  from  responsibility  for 
deviation  from  his  instructions,  when  he  accepts  the  bene- 
fit of  his  act.  (wz)  He  may  reject  the  transaction  altoge- 
*ther;  (n)  and  if  he  advanced  money  on  goods  which  his  agent 

ij)  Leverick  v.  Meigs,  1  Cow.  645;  27;  Sykes  v.  Giles,  5  M.  &  W.  G45; 
Marshall,  C.  J.,  Maneila  v.  Barry,  3  Kingston  v.  Wilson,  4  Wash.  Cir.  C. 
Cranch,  415,  439  ;  Kingston  v.  Kincaid,  315. — And  if  the  agent  is  employed  to 
1  Wash.  C-  C.  R.  454 ;  Kundlci;.  Moore,  act  in  some  particular  business  or  trade, 
3  Johns.  Cas.  36  ;  Loraine  v.  Cart-  he  may  bind  his  principal  by  following 
Wright,  3  Wash.  C.  C.  R.  151;  Fergu-  the  usages  of  that  trade,  whether  the 
son  V.  Porter,  3  Florida,  27. — "And  principal  is  aware  of  them  or  not.  Pol- 
no  motive  connected  Avith  the  interest  lock  v.  Stables,  12  Q.  B.  765;  Baylifte 
of  the  principal,  however  honestly  en-  v.  Butterworth,  1  Exch.  425 ;  there 
tertained,  or  however  wisely  adopted,  Parke,  B.,  distinguishing  the  case  of 
can  excuse  a  breach  of  the  instructions."  Bartlett  v.  Pentland,  10  B  &  Cress.  760, 
Washington,  J„  in  Courcier  ;;.  Ritter,  4  said,  "  That  however  is  a  different  ques- 
Wash.  C.  C.  11.  549,  551 :  but  compare  tion  from  the  present,  which  is  one  of 
Forrestier  u.  Boardman,  1  Story,  43. —  contract.  In  thecase  of  acow/zart  which 
If  in  obedience  to  the  instructions,  the  a  person  orders  another  to  make  for 
agent  do  an  act  which  is  illegal  in  fact,  him,  he  is  bound  by  that  contract  if  it 
though  not  clearly  in  itself  a  breach  of  is  made  in  the  usual  way." 
law,  nor  known  by  the  agent  to  be  so,  (/)  Catlin  v.  Bell,  4  Camp.  184  ;  Park- 
he  is  entitled  to  be  indemnified  by  the  ist  v-  Alexander,  1  Johns.  Ch.  394  ;  Se- 
principal  for  the  consequences.  Betts  gar  r.  Edwards,  11  Leigh,  213. 
V.  Gibbins,  2  Ad.  &  El.  57;  Adarason  (?«)  Clarke  v.  Perrier,  2  Frecm.48; 
V.  Jarvis,  4  Bing.  66,  72.  Prince  v.  Clark,  1  B.  &  C.  186. 

{k}  Marzetti  v.  Williams,  1  B.  &  Ad.         (n)  Roe  v.  Prideaux,  10  East,  158. — 

415;  Sutton  v.  Tatham,  10  Ad.  &  El.  If  however  an  agent  has  done  more  than 

[74] 


CH.  III.]  AGENTS.  *71 

purchased  in  violation  of  his  authority,  he  is  not  bound  to 
return  the  goods  to  the  agent  when  he  repudiates  the  sale,  but 
has  his  lien  on  them,  and  may  hold  them  as  the  property  of 
*the  agent,  (o)  Bat  he  must  reject  the  transaction  at  once,  and 
decisively,  as  soon  as  fully  acquainted  with  it.  For  if  he 
delays  doing  this,  that  he  may  have  his  chance  of  making  a 
profit,  or  if  he  performs  acts  of  ownership  over  the  property, 
he  accepts  it,  and  confirms  the  doings  of  the  agent,  (p.) 

Some  conflict  appears  to  exist  as  to  the  right  of  an  agent 
to  delegate  his  authority.  On  the  one  hand,  the  general 
principle,  that  delegatus  non  potest  delegare,  is  certain,  (q) 
An  agent  can  do  for  his  principal  only  that  which  his  princi- 
pal authorizes ;  and  if  the  principal  appoints  an  agent  to  act 
for  him  as  his  representative  in  any  particular  business,  this 
agent  has  not  thereby  a  right  to  make  another  person  the 
representative  of  his  principal.  The  employment  and  trust 
are  personal;  they  may  rest  on  some  ground  of  personal 
preference  and  confidence,  and  on  the  knowledge  which  the 
principal  has  of  his  agent's  ability,  and  the  belief  he  has  of 
his  integrity.  But  if  the  agent,  merely  by  virtue  of  his 
agency,   may   substitute   one  person  in  his  stead,  he  may 


he  was  authorized  to  do,  the  execution,  (q)  Combe's  Case,  9  Co.  R.  75  b,  76 
though  void  as  to  the  excess,  may  be  a.  —  This  maxim  has  frequent  applica- 
held  good  for  the  rest,  at  least  in  equity,  tion  in  cases  of  powers.  Ingram  v.  la- 
But  it  is  necessary  in  such  a  case  that  gram,  2  Atk.  88  ;  Alexander  v.  Alex- 
the  boundaries  between  the  excess  and  ander,  2  Ves.  Sen.  643  ;  Hamilton  v. 
the  execution  of  the  power  should  be  Royse,  2  S.  &  Lef.  330.  —  A  notice  to 
clearly  distinguishable.  Sir  Thomas  quit,  given  by  an  agent  of  an  agent,  is 
Clarke,  V.  C,  Alexander  i\  Alexander,  not  sufficient  without  a  recognition  by 
2  Ves.  Sen.  644;  Campbell  i\  Leach,  the  principal.  Doe  u.  Robinson,  3  Bing. 
Ambl.  740  ;  Vanada  y.  Hopkins,  1  J.  J.  N.  C.  677. — An  attachment  for  non- 
Marsh.  285,  294  ;  Sugden  on  JPowers,  payment  of  costs  cannot  be  supported 
Ch.  9,  sec.  8.  —  And  in  some  cases  it  by  a  demand  of  the  costs  by  a  third 
has  been  held  at  law  that  an  agent  tran-  person,  authorized  by  the  attorney  to 
scending  his  authority  in  part,  binds  his  receive  them.  Clark  v.  Dignum,  3  M.  «& 
principal  for  the  part  which  was  per-  W.  319.  —  In  an  action  on  an  agree- 
formed  in  accordance  with  the  author-  ment  for  the  sale  of  goods,  at  a  valu- 
ity.  Gordon  v.  Buchanan,  5  Yerg.  71  ;  ation  to  be  made  by  A.,  the  issue  was, 
Johnson  i;.  Blasdale,  1  Smedes&  Marsh,  whether  a  valuation  was  made  by  A. 
R.  17.  —  See  Wintle  v.  Crowther,  1  C.  &  It  appeared  that  the  goods  were  in  fact 
Jer.  316.  valued  by  B.,  A.'s  clerk.    Held,  that  the 

(o)  Lord  Hardivicke,  Cornwall  v.  Wil-  defendant  was  not  bound  by  it,  unless  it 

son,   1    Ves.    Sen.   510  ;    Lord  Eldon,  were  shown  that  it  was  agreed  between 

Kemp  V.  Pryor,  7  Ves.  240,  247.  the  parties  that  B.'s  valuation  should  be 

(p)  Prince   v.  Clark,  1  B.   &  Cress,  taken  as  A.'s  ;  and  that  the  fact  of  the 

186  ;    Cornwall  v.  Wilson,  1  Ves.  Sen.  defendant's    seeing    B.    valuing,    and 

509.  making  no  objection  until  B.  told  him 

[75] 


72* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


another,  or  any  other,  and  thus  compel  the  principal  to  be 
represented  by  one  whom  he  does  not  know,  or  be  bound  by 
obhgations  cast  upon  him  by  one  whom  he  does  know,  and 
because  he  knows  *him  would  refuse  to  employ.  But,  on  the 
other  hand,  the  principal  may,  if  he  chooses,  give  this  very 
power  to  his  agent.  (/•)  In  the  common  printed  forms  of 
letters  of  attorney,  we  usually  find  the  phrase,  "  with  power 
of  substitution,"  and  after  this  a  promise  to  ratify  whatever 
the  attorney,  "  or  his  substitute,"  may  lawfully  do  in  the 
premises.  That  the  agent  has  this  power,  when  it  is  given  to 
him  in  this  way,  cannot  be  doubted.  But,  it  must  be  as  cer- 
tain that  the  principal  may  confer  the  same  power  other- 
wise; and  not  only  by  other  language,  but  without  any 
express  words  whatever,  (s)  If  a  principal  constitutes  an 
agent  to  do  a  business,  which  obviously  and  from  its  very 
nature  cannot  be  done  by  the  agent  otherwise  than  through  a 
substitute,  or  if  there  exists  in  relation  to  that  business  a 
known  and  established  usage  of  substitution,  in  either  case 
the  principal  would  be  held  to  have  expected  and  have  author- 
ized such  substitution,  (t)  So  too  where  an  agent  without 
authority  appoints  a  substitute,  the  principal  may,  either  by 
words  or  acts,  so  confirm  and  ratify   such  substitution,  as  to 


the  amount,  was  not  evidence  of  such 
agreement.  Ess  v.  Tiuscott,  2  M.  & 
W.  385  —  A  broker  cannot  delegate  his 
authority.  Henderson  r.  Barnewall,  1 
Y.  &  Jer.  387  ;  Cockran  v.  Irlam,  2 
M.  &  Sel.  301,  note.  —  Nor  can  a  factor. 
Solly  V.  Rathbonc,  2  M.  &  Sel.  298; 
Catlin  r.  Bell,  4  Camp.  183.  — A  dis- 
tinction, however,  is  to  be  taken  be- 
tween the  employment  of  a  servant  and 
the  delegation  of  the  authority.  An 
agent,  like  another  person,  may  act  by 
the  hand  of  a  servant  as  well  as  by  his 
own  hand,  in  cases  where  the  act  is 
merely  physical,  or  where  mind  enters 
into  it  so  little  that  it  would  be  absurd 
to  say  that  the  difference  between  one 
mind  and  another  could  be  of  any 
moment.  Lord  Ellenhorough,  Mason  v. 
Joseph,  1  Smith,  406.  See  also  Powell 
V.  Tuttle,  3  Coms.  396. 

(r)  Palliser  v.  Ord,  Bunb.  166. —A 
power  coupled  with  an  interest,  given  to 
A.  and  his  assiqns,  passes  with  the  inte- 

[76] 


rest  to  A.'s  devisee,  to  the  executor  of 
that  devisee,  and  to  the  assignee  of  the 
devisee,  &c. ;  for  the  word  assigns  in- 
cludes both  assignees  in  law  and  in 
fact.  IIow  V.  Whitefield,  1  Vent.  338, 
339  ;  S.  C.  as  How  v.  Whitebanck,  1 
Freeman,  476. 

(s)  Moon  V.  Guardians  of  Whitney 
Union,  3  Bing,  N.  C.  814  ;  Gillis  v. 
Bailey,  1  Foster  (N.  H.)  149. 

(t)  An  architect  employed  by  defend- 
ants to  draw  a  specification  for  a  build- 
ing proposed  to  be  erected,  himself  em- 
ployed the  plaintiff  to  make  out  the 
quantities,  which  work  was  to  be  paid 
for  by  the  successful  competitor  for  the 
building  contract ;  the  jury  found  a 
usage  for  architects  to  have  their  quan- 
tities made  out  by  surveyors  :  —  it 
was  held  that  the  plaintiff  was  entitled 
to  recover  compensation  from  the  de- 
fen:lants.  Moon  v.  Guardians  of  Whit- 
ney Union,  3  Bing.  N.  C.  814.  Ledoux 
V.  Goza,  4  Louis.  Ann.  160. 


CH.   III.]  AGENTS.  *73 

o-ive  to  it  the  same  force  and  effect  as  if  it  had  been  originally 
authorized,  (u) 

A  substitute  of  an  agent  who  had  no  authority  to  appoint 
him  cannot  be  held  as  the  agent  of  the  original  principal,  but 
is  only  the  agent  of  the  agent  who  employs  him,  (v)  and  who 
is  accordingly  his  principal ;  and  the  person  so  employed  is 
*  bound  only  to  his  immediate  employer,  and  must  look  only 
to  him  for  compensation,  (vv)  But  a  substitute  appointed 
by  an  agent,  who  has  this  power  of  substitution,  becomes 
the  agent  of  the  original  principal,  and  may  bind  him  by  his 
acts,  and  is  responsible  to  him  as  his  agent,  and  may  look  to 
him  for  compensation. 

An  agent  is  bound  to  great  diligence  and  care  for  his  prin- 
cipal ;  not  the  utmost  possible,  but  all  that  a  reasonable  man 
under  similar  circumstances  would  take  of  his  own  affairs,  (w) 
And  where  the  instructions  are  not  specific,  or  do  not  cover 
the  whole  case,  there,  as  we  have  already  stated,  he  is  to  con- 
form to  established  usage,  as  that  which  was  expected  from 
him.  (x)  This  usage  may  be  generally  proved  by  ordinary 
means ;  but  in  some  instances,  as  in  relation  to  negotiable 
bills  and  notes,  it  is  required  and  defined  by  the  law;  and  here 
it  must  be  followed  precisely.  (^)      And  an  agent  is  bound  to 

(u)  Tindal,  C.  J.,  Doe  v.  Robinson,  3  duty  to  insure,  see  Smith  v.  Lascelles, 

Bing.  N.  C.  677,  679;  Mason  ?;.  Joseph,  2  T.  II.  189;   Tickel  v.  Short,  2  Ves. 

1  Smith,  406.  Sen.  239. 

{v)    Cobb   V.    Becke,    6  Q.   B.   930  ;         (y)  Crawford  v.  Louisana  State  Bank, 

Robbins  w.  Fennell,  11  Q.  B.  248.  1   Mart.  N.   S.  214;    Miranda   v.   City 

{vv)  Cleaves  f.  Stockwell,  33  Maine,  Bank  of  New  Orleans,   6  Louis.  740; 

341.  Smedes  v.  Utica  Bank,  20  Johns.  372. 

[w)  Co.  Litt.  89,a.;  Chapman  w.  Wal-  — Yet  this  liability  may  be  limited  by 

ton,  10  Bing.  57  ;  Lawler  v.  Keaquick,  the  particular  understanding  of  the  par- 

1  Johns.  Cas.  174  ;  Kingston  u.  Kincaid,  tics;    as   for  instance  where  an  agent, 

1  Wash.  C.  C.  454.  —  Less  than  ordi-  dealing  with  negotiable  paper,  has  been 
nary  diligence  is  required  of  one  who  accustomed  to  do  business  in  a  certain 
acts  as  agent  gratuitously ;  unless  in-  way  different  from  that  which  the  law 
deed  he  hold  himself  out  as  a  person  would  otherwise  require,  and  the  prin- 
exercising  one  of  certain  privileged  pro-  cipal  employing  him  may  from  the  cir- 
fessions  or  trades,  as  that  of  an  attorney,  cumstances  be  supposed  to  know  this. 
Doorman  v.  Jenkins,  4  N.  &  Mann.  170,  Mills  v.  Bank  of  U.  S.  11  Wheat.  431 ; 

2  Ad.  &  El.  256  ;  Dartnall  v.  Howard,  see  Aliens.  Merchants' Bank,  22  Wend. 
4  B.  &  Cress.  345.     See  infra  n.  (z.)  215  ;  East  Haddam  Bank  v.  Scovil,  12 

C^)  J.nff,  p.  69*,  note  (k);  Wiltshire  V.  Conn.  303. — And  an  agent  intrusted 
Sims,  1  Camp.  258.  —  And  the  usage  if  with  a  negotiable  instrument,  and  fail- 
followed  (in  the  case  where  there  are  no  ing  to  fulfil  his  duty  with  respect  to  it, 
express  instructions,)  is  a  defence  to  is  only  liable  like  other  agents  to  the 
the  charge  of  negligence.  Russell  v.  extent  of  the  loss  he  has  caused,  and 
Hankey,  6  T.  R.  12. — As  to  the  factor's  does  not  have  to  assume  the  responsi- 
7*  [-77-] 


74* 


THE    LAW   OF    CONTRACTS. 


[book  I. 


possess  and  exert  the  skill  and  knowledge  necessary  for  the 
proper  performance  of  the  duties  which  he  undertakes,  (s) 

*  The  responsibility  of  an  agent,  whether  for  positive  mis- 
conduct, or  for  deviation  from  instructions,  is  not  measured 
by  the  extent  of  his  commission,  but  by  the  loss  or  injury 
which  he  may  cause  to  his  principal,  (a)  And,  in  general,  a 
verdict  against  a  principal  for  the  act  of  his  servant,  is  the 
measure  of  the  damages  which  the  former  may  recover 
against  the  latter,  {b)  And  the  agent  is  responsible  if  the 
loss  could  not  have  happened  but  for  his  previous  misconduct, 
although  it  was  not  immediately  caused  by  it.  (c) 

It  may  be  regarded  as  a  prevailing  principle  of  the  law, 
that  an  agent  must  not  put  himself,  during  his  agency,  in  a 


bilities  which  the  law-merchant  imposes 
upon  a  negligent  party  to  the  bill.  Mar- 
shall, C.  J.,  Hamilton  v.  Cunningham, 
2  Brock.  367.  And  see  Van  Wart  v. 
WooUey,  .3  B.  &  Cress.  4.39,  and  Van 
Wart  V.  Smitli,  1  Wend.  219.  — An 
agent,  acting  with  ordinary  diligence,  is 
not  liable  for  injuries  caused  by  his  mis- 
take in  a  doubtful  matter  of  law.  Me- 
chanics' Bank  v.  Merchants'  Bank,  6 
Mete.  13. 

{z)  One  who  undertakes  to  act  in  a 
professional  or  other  clearly  defined  ca- 
pacity, as  that  of  carpenter,  blacksmith, 
or  the  like,  is  bound  to  exercise  the  skill 
appropriate  to  such  trade  or  profession  ; 
and  this,  it  seems,  although  the  under- 
taking be  gratuitous.  Dartnall  v.  How- 
ard, 4  B.  &  Cress.  345;  Shiells  v.  Black- 
burne,  1  H.  Bl.  161  ;  Bourne  v.  Digglcs, 
2  Chitt.  311  ;  Tindal,  C.  J.,  Lanphier  v. 
Phipos,  8  C.  &  P.  479  ;  Denew  v.  Dave- 
rell,  3  Camp.  451. — In  Wilson  v.  Brett, 
11  M.  &  W.  113,  it  was  held  that  a  per- 
son who  rides  a  horse  gratuitously  at 
the  owner's  request,  for  the  purpose  of 
showing  him  for  sale,  is  bound,  in  doing 
so,  to  use  sucli  skill  as  he  actually  pos- 
sesses ;  and  if  proved  to  be  a  person 
conversant  with  and  skilled  in  horses, 
he  is  equally  liable  with  a  borrower  for 
injury  done  to  the  horse  while  ridden  by 
him. '  Rolfe,  B.,  said  :  "  The  distinction 
I  intended  to  make  was,  that  a  gratui- 
tous bailee  is  only  bound  to  exercise 
such  skill  as  he  possesses,  whereas  a 
hirer  or  borrower  may  reasonably  be  ta- 
ken to  represent  to  the  party  who  lets, 
or  from  whom  he  borrows,  that  he  is  a 
person  of  competent  skill.  If  a  person 
[78] 


more  skilled  knows  that  to  be  dangerous 
which  another  not  so  skilled  as  he,  does 
not,  surely  that  makes  a  difference  in 
the  liability.  I  said  I  could  see  no  dif- 
ference between  negligence  and  gross  neg- 
ligence—  that  it  was  the  same  thing, 
with  the  addition  of  a  vituperative  epi- 
thet ;  and  I  intended  to  leave  it  to  the 
jury  to  say  whether  the  defendant,  being, 
as  appeared  by  the  evidence,  a  person 
accustomed  to  themanagementof  horses, 
was  guilty  of  culpable  negligence." 
But  Parke,  B.,  only  went  so  far  as  to 
say  that  "  In  the  case  of  a  gratuitous 
bailee,  ivhere  his  profession  or  situation  is 
such  as  to  imply  the  possession  of  compe- 
tent skill,  he  is  equally  liable  for  the  neg- 
lect to  use  it." 

(«)  Sivewright  v.  Richardson,  19  Law 
Times  Reps.  10;  Hamilton  v.  Cunning- 
ham, 2  Brock.  R.  350;  Arrott  w.  Brown, 
6  Whart.  9  :  Frothingham  v.  Everton, 
12  N.  H.  239;  Allen  v.  Suydam,  20 
Wend.  321.  —  Yet  the  principal  may 
maintain  an  action  against  the  agent 
for  a  breach  of  the  contract  between 
them,  and  recover  nominal  damages, 
although  there  be  no  actual  loss.  Mar- 
zetti  V.  Williams,  1  B.  &  Ad.  415 ; 
Frothingham  v.  Everton,  12NewHamp. 
239. 

(h)  Mainwaring  v.  Brandon,  8  Taunt. 
202;  2  Moore,  125,  S.  C. 

(c)  Davis  V.  Garrett,  6  Bing.  716; 
Short  V.  Skipwith,  1  Brock.  103;  Mal- 
lough  V.  Barber,  4  Camp.  150;  Park  v. 
Hamond,  4  Camp.  344 ;  6  Taunt.  495, 
S.  C. ;  Smith  v.  Lascelles,  2  T.  R.  187  ; 
Bell  V.  Cunningham,  3  Peters,  84,  85 ; 
De  Tastett  v.  Crousillat,  2  Wash.  C.  C. 


CH.   III.J  AGENTS.  *75 

position  which  is  adverse  to  that  of  his  principal,  (d)  For 
even  if  the  honesty  of  the  agent  is  unquestioned,  and  if  his 
impartiality  between  his  own  interest  and  his  principal's  might 
be  relied  upon,  yet  the  principal  has  in  fact  bargained  for  the 
*exercise  of  all  the  skill,  ability,  and  industry  of  the  agent,  and 
he  is  entitled  to  demand  the  exertion  of  all  this  in  his  own 
favor,  (e)  This  principle  is  recognized  to  some  extent  at 
law  (/)  ;  but  most  cases  of  this  kind  come  before  courts  of 
equity.  Thus,  an  attorney  may  not  take  a  gift  from  his 
client,  although  there  be  not  the  least  suspicion  of  fraud,  (ff) 
But  the  rule  is  applied  not  so  much  to  those  who  act  as 
servants,  or  instruments  for  some  particular  thing,  as  to  per- 
sons whose  employment  is  rather  a  trust  than  a  mere  service. 
Thus,  one.  holding  property  for  another,  which  it  is  his  duty 
to  sell,  cannot  himself  purchase  it ;  ( g-)  or  if  he  be  employed 
to  buy,  he  cannot  sell,  (/i)  A  technical  reason  given  for  this 
is,  that  the  same  person  cannot  both  buy  and  sell.  But  if 
employed  to  sell,  where  he  would  not  himself  convey  or  trans- 
fer the  property  as  agent,  because  the  principal  would  do  this 
himself,  still  the  agent  cannot  bind  the  principal  to  make  the 
transfer  to  him  or  for  his  benefit,  by  any  contract  which  he 
makes  as  his  agent.  As  agent  to  sell,  it  is  his  duty  to  get 
the  highest  fair  price ;  and  this  duty  is  incompatible  with  his 
wish  to  buy  ;  and  so,  vice  versa,  if  he  is  an  agent  to  purchase. 
At  one  time,  it  was  understood  to  be  necessary  to  show  that 

R.  132;  Morris  v.  Sumraerl,  2  Wash.  C.  agent  may  not  dispute  the  title  of  his 

C.   R.    203.  —  But    the    loss    must    be  ■principal,'unless  the  principal  obtained  the 

capable  of  being  ascertained  with  rea-  (joods  fraudulently.   Hardman  v.  Wilcox, 

sonable  certainty.     Webster  v.  De  Tas-  9  Bing.  382,  n.  (a.) 

tet,  7  T.  R.  157  ;  The  Amiable  Nancy,  (e)  Thompson  v.  Havelock,  1  Camp, 

3  Wheaton,  560  ;    Smith  v.  Condry,  *1  527  :  Diplock  v.  Blackburn,  3  Camp.  43. 

Howard,  28;    Tide-water  Canal  Co.  r.  {f)  See  infra,  note  (jj) 

Archer,  9  Gill  &  J.  479.  (//)    Lord    Erskine,   C,   Wricrht  v. 

{d)  Lees  v.  Nuttall,  2  M.  &  K.  819;  Proud,   13   Ves.    138;   Montesquieu  v. 

Lees  V.  Nuttall,  1  R.  &  M.  53  ;  Dunbar  Sandys,  18  Ves.  308;  see  Ker  v.  Dun- 

r.Tredennick,  2  B.  &Beatty,319  ;  Nor-  gannon,  1  Dru.  &  War.  542  ;  Middleton 

ris  V.  Le  Neve,  3  Atk.  38;    Taylor  v.  v.  "Welles,  4  Bro.  P.  C.  245.     See  also 

Salmon,  4  M.    &  Cr.  134;    Huguenin  Cutts  i-.  Salmon,  12  E.  L.  &  E.  316. 

V.  Basely,   14  Ves.  273;  Woodhouse  r.  (9)  Lowther  y.Lowther,  13  Ves.  103  • 

Meredith,  1  Jac.  &  Walk.  24  ;    Barker  Wren  v.  Kirton,  8  Ves.  502 ;  Morse  v. 

V.  Marine  Ins.  Co.  2  Mason,  369 ;  Church  Royal,  1 2  Ves.  355  ;  Charter  v.  Trevel- 

V.  Marine  Ins.  Co.  1  IMason,  344;  Par-  yan,  11  C.  &  Fin.  714. 

kist  V.  Alexander,   1  Johns.  Ch.  394;  (A)  Lees  v.  Nuttall,  2  M.  &  K.  819; 

Shepherd  V.  Percy,  4  Martin,  N.  S.  267;  Taylor  v.  Salmon,   4   M.   &  Cr.  139; 

Coles  V.  Trecothick,  9  Ves.  234.  — An  Bunker  v.  Miles,  30  Maine,  431. 

[79] 


75 


THE   LAW   OP    CONTRACTS. 


[book  I. 


a  trustee  had  taken  undue  advantage  of  his  position,  in  order 
to  set  aside  a  purchase  by  him  of  that  which  he  was  a  trustee 
to  sell,  (i)  But  this  is  not  so  now.  (7)  At  present,  the  rule 
in  equity  appears  to  be,  that  any  act  by  an  agent  with  respect 
to  the  subject-matter  of  the  agency  injurious  to  his  principal, 
may  be  avoided  by  the  principal.  If  an  agent  to  sell  become 
the  purchaser,  or  if  an  agent  to  buy  be  himself  the  seller,  a 
court  of  chancery,  upon  the  timely  application  of  the  princi- 
pal, will  presume  that  the  transaction  was  injurious,  and  will 
not  permit  the  agent  to  contradict  this  presumption  ;  —  unless, 
indeed,  he  can  show  that  the  principal,  when  furnished  with 
all  the  knowledge  he  himself  possessed,  gave  him  previous 
authority  to  be  such  buyer  or  seller,  or  afterwards  assented  to 
such  purchase  or  sale.  (j(/) 


(i)  Lord  Loughborough,  Whichcote  v. 
Lawrence,  3  Ves.  750. 

(j)  Ex  parte  Lacey,  6  Ves.  627;  Ex 
parte  Bennett,  10  Ves.  385;  Davoue  v. 
Fanning,  2  Johns.  Ch.  252;  Brothers  v. 
Brothers,  7  Ire.  Eq.  150;  Harrison  v. 
McHcnry,  9  Geo.  164;  Slurdevjint  v. 
Piiie,  1  Carter  (Ind.)  277;  Mason  v. 
Martin,  4  Maryl.  124. 

( ;}')  Lord  Etdon,  Coles  v.  Trecothick, 
9  Ves.  234,247  ;  Lovd  Ersh'ne,  Lowther 
V.  Lowther,  13  Ves.  103  ;  Ex  parte 
Hughes,  6  Ves.  617  ;  Murphy  r.  0"Shea, 
2  J.  &  L.  422 ;  E.  L  Conip.  v.  Hench- 
man, 1  Ves.  Jun.  289  ;  Ex  parte  Ben- 
nett, 10  Ves.  385;  Oliver  v.  Court,  8 
Price,  127  ;  Fox  r.Mackreth,  2  Bro.  Ch. 
400 ;  The  York  Buildings  Co.  v.  Mack- 
enzie, 8  Bro.  P.  C.  42 ;  Molony  v.  Ker- 
nan,  2  D.  &  War.  31 ;  Davoue  v.  Fan- 
ning, 2  Johns.  Ch.  252;  McConncll  i;. 
Gibson,  12  111.  128  ;  Pensonneau  v. 
Bleakley,  14  111.  15  ;  D wight  v.  Black- 
mar,  2  Mich.  330 ;  Clute  v.  Barron, 
Ibid.  192;  Allen  v.  Bryan,  7  Ire.  Eq. 
276  ;  Moore  v.  Moore,  "l  Selden,  256 ; 
Conger  v.  King,  11  Barb.  356  ;  White 
t'.  Trotter,  14  Smedes  &  Marsh.  30; 
Michoud  V.  Girod,  4  How.  503 ;  Green 
V.  Sargeant,  23  Verm.  466.  —  Unless 
the  principal  object,  the  transaction 
stands  good  ;  and  a  third  party  cannot 
open  it.  Jackson  v.  Van  Dalfsen,  5 
Johns.  43;  Jackson  w.  Walsh,  14  Johns. 
407  ;  Williams's  Ex'rs  v.  Marshall,  4  G. 
&  Johns.  376;  Litchfield  v.  Cudworth, 
15  Pick.  31 ;  Pitt  v.  Petway,  12  Ire.  L. 
69.  —  How  far  a  court  of  law,  at  the 
[80] 


instance  of  the  principal,  will  go  in 
avoiding  such  sales  or  purchases  by  the 
agent  for  his  own  benefit,  is  not  quite 
clear.  Probably  in  no  jurisdiction 
where  chancery  powers  have  existed 
from  the  beginning,  and  where  courts  of 
law  have  not  been  compelled  to  act,  in 
order  to  prevent  parties  from  being 
without  remedy,  would  it  be  held 
that  a  sale  by  an  agent  to  himself  is 
avoided  at  law  by  the  mere  dissent  of 
the  principal,  without  proof  of  fraud,  or 
breach  of  a  positive  instruction  to  make 
sale  to  some  third  party.  From  the 
language  of  the  court  in  Jackson  v. 
Walsh,  14  Johns.  414,  415,  it  maybe 
inferred  that  if  A.,  as  executor,  sell  land 
to  B.,and  B.  on  the  same  day  reconvey 
to  A.,  the  legal  title  is  vested  in  A.,  in 
the  absence  of  actual  fraud.  And  there 
is  a  strong  intimation  in  Williams's 
Ex'rs  V.  Marshall,  4  G.  &  Johns.  376, 
380,  that  even  if  it  be  a  chattel  interest 
that  is  sold,  the  principal,  desiring  to  set 
aside  the  sale  merely  on  the  ground 
that  the  agent  was  himself  the  purchaser, 
must  resort  to  equity.  And  so  it  seems 
to  be  held  in  Massachusetts :  Harring- 
ton V.  Brown,  5  Pick.  521,  per  cur.  ; 
Shelton  v.  Homer,  5  Mete.  467.  —  In 
Perkins  v.  Thompson,  3  N.  H.  144,  it 
was  decided  that  a  deputy  sheriff  who 
on  selling  goods  seized  upon  an  exe- 
cution, was  himself  the  purchaser,  there- 
by became  guilty  of  a  conversion,  and 
was  liable  in  trover;  but  the  amount 
paid  for  the  goods  was  allowed  to  be 
given  in  evidence  in  mitigation  of  da- 


CH.  III.]  AGENTS.  *76  -*77 

*Among  the  obvious  and  certain  duties  of  an  agent,  is  that 
of  keeping  a  correct  account  of  all  money  transactions,  and 
rendering  the  same  to  the  principal  with  proper  frequency,  or 
whenever  called  on.  (k)  The  court  has  compelled  the  ren- 
dering of  such  account  after  twenty  years  had  elapsed.  But, 
in  general,  after  a  considerable  time  has  elapsed,  and  there 
are  no  circumstances  to  repel  the  presumption  of  an  account 
rendered,  accepted,  and  settled,  the  jury  are  instructed  to 
make  that  presumption.  (/)  The  agent  of  an  agent  is  ge- 
nerally accountable  only  to  his  own  principal,  and  not  to 
*the  principal  of  the  party  for  whom  he  acts;  that  is, only  his 
immediate  employer  can  call  him  to  account.  Q)i) 

If  an  agent,  without  necessity,  has  mixed  the  property  of 
his  principal  with  his  own,  in  such  away  that  he  cannot  ren- 
der an  account  precisely  discriminating  between  the  two,  the 
whole  of  what  is  so  undistinguishable  is  held  to  belong  to  the 
principal;  (n)  for  it  was  the  duty   of  the  agent  to  keep  the 


mages.  At  that  time,  however,  the  New 
Hampshire  courts  possessed  no  equita- 
ble jurisdiction.  And  see  Lessee  of  La- 
zarus V.  Bryson,  3  Binn.  54.  —  In  New 
Jersey,  the  court,  in  order  to  give  relief 
at  law,  held  that  a  sale  to  himself  by  an 
executor,  administrator,  or  trustee,  in- 
trusted with  the  sale  of  real  estate,  must 
be  considered  absolutely  void  by  common 
law.  Den  v.  Hammel,  3  Harrison,  74, 
81.  See  Mackintosh  v.  Barber,  1  Bing. 
50. 

(k)  Topham  v.  Braddick,  1  Taunt. 
572 ;  Lord  Chedworth  v.  Edwards,  8 
Ves.  49  ;  White  v.  Lady  Lincoln,  8  Ves. 
363;  Lord  Hardwicke  v.  Vernon,  14 
Ves.  510;  Lady  Ormond  v.  Hutchinson, 
13  Ves.  47;  Lupton  v.  White,  15  Ves. 
436 ;  Pearse  v.  Green,  1  Jac.  &  Walk. 
135;  Motley  v.  Motley,  7  Ire.  Eq.  211. 
See  as  to  the  classes  of  persons  whom 
equity  will  compel  to  account,  Terry 
V.  Wacher,  15  Sim.  448. —  It  seems 
that  where  the  agent  has  made  a  mis- 
take in  the  account,  he  will  not  be 
bound  by  the  account  as  given,  although 
his  principal  have  acted  upon  the  pre- 
sumption of  its  correctness  in  his  deal- 
ings with  third  parties — provided  there 
was  ground  from  which  the  principal 
might  reasonably  have  inferred  the  ex- 


istence of  the  error.  In  the  case  ad- 
judged, the  principal  like  the  agent  was 
a  broker,  and  the  mistake  in  the  account 
was  one  which  a  knowledge  of  the  usage 
of  the  stock  market  miglit  have  enabled 
him  to  detect.  Dails  v.  Lloyd,  12  Q.  B, 
531. 

(/)  Topham  v.  Braddick,  1  Taunt. 
571. 

{m)  Stephens  v.  Badcock,  3  B.  &  Ad. 
354,  where  it  was  held  that  money  had 
and  received  could  not  be  maintained 
against  an  attorney's  clerk,  who,  in  the 
absence  of  his  master,  and  authorized 
by  him,  received  certain  money  due  to 
the  plaintiffwhich  the  attorney  had  been 
employed  by  the  plaintiff  to  collect ;  al- 
though the  absence  of  the  attorney  (who 
proved  to  be  in  a  state  of  insolvency) 
continued,  and  the  defendant  had  not 
paid  over  the  money  to  him  or  his  es- 
tate. The  agent  when  he  received  the 
money  had  given  a  receipt  signed  "  for 
Mr.  S.  J.  [the  attorney,]  J  .B."  [the  de- 
fendant.] See  also  Pinto  v-  Santos,  5 
Taunt.  447  ;  Mylerr.  Fitzpatrick,  Madd. 
&  Geld.  360. 

(n)  Lupton  v.  White,  15  Ves.  436; 
440  ;  Chadworth  v.  Edwards,  8  Ves.  46  ; 
Wren  v.  Kirton,  11  Ves.  377  ;  Hart  v. 
Ten  Eyck,  2  Johns.  Ch.  62,  108. 

[81] 


77 


THE   LAW   OF   CONTRACTS. 


[book  I. 


property  and  the  accounts  separate,  and  he  must  bear  the 
responsibility  and  the  consequences  of  not  doing  so. 

As  the  principal  is  entitled  to  receive  from  the  agent  pro- 
perly intrusted  to  him,  with  its  natural  increase,  (o)  he  may 
charge  the  agent  with  interest  for  balances  in  his  hands,  un- 
less the  nature  of  the  transaction,  or  evidence,  direct  or  cir- 
cumstantial, shows  that  the  intention  of  the  parties  was 
otherwise,  (p)  This  may  be  inferred,  for  instance,  where 
there  has  been  a  long  accumulation,  and  the  money  has  lain 
useless  in  the  agent's  hands,  and  the  principal  has  known 
this,  (q) 


(o)  Browii  V.  Litton,  1  P.  Wms.  141 ; 
Massey  v.  Davies,  2  Ves.  Jr.  317  ;  Dip- 
lock  V.  Blackburn,  3  Camp.  43  ;  Siiort 
V.  Skipwith,  1  Brock.  103. 

(p)  Dodge  I'.  Perkins,  9  Pick.  368, 
388.  "  Upon  the  principles  of  the  com- 
mon law,  we  think  it  clear  that  interest 
is  to  be  allowed,  where  the  law  by  im- 
plication makes  it  the  duty  of  the  party 
to  pay  over  the  money  to  the  owner, 
without  any  previous  demand  on  his 
part."  Putnam,  J.  As  to  receivers, 
see V.  Jolland,  8  Ves.  72. 


(q)  Lord  EUenboroiigJi  seems  to  have 
been  of  opinion  in  Rogers  v.  Boehm,  2 
Esp.  704,  that  neither  in  law  nor  in 
equity,  if  money  had  been  remitted  to 
an  agent,  and  he  suffered  it  to  remain 
dead  in  his  hands,  could  he  be  made  lia- 
ble for  interest  ;  though  he  should  be 
chargeable  with  interest  if  he  mixed  the 
money  with  his  own,  or  made  any  use 
of  it. 


[82] 


CH.  IV.]  FACTORS    AND   BROKERS.  78 


CHAPTER  IV. 

FACTORS   AND   BROKERS. 

Sec.  I.  —  Who  is  a  Factor,  and  who  a  Broker. 

The  Factor  is  intrusted  with  the  property,  which  is  the 
subject-matter  of  the  agency  ;  the  Broker  is  only  employed 
to  make  a  bargain  in  relation  to  it.  The  compensation  to 
both  is  usually  a  commission  ;  and  when  the  agent  guaran- 
tees the  payment  of  the  price  for  which  he  has  sold  the  goods 
of  his  principal,  then  the  commission  is  larger,  as  it  includes  a 
compensation  for  this  risk.  In  this  case  he  is  said  in  the 
books  to  act  under  a  del  credere  commission.  But  this  phrase 
is  seldom  used  in  this  country,  nor  indeed  is  the  word  factor 
often  employed  by  mercantile  men.  The  business  of  factors 
is  usually  done  by  commission  merchants,  who  are  generally 
called  by  that  name,  and  who  do  or  do  not  charge  a  guaran- 
tee commission  as  may  be  agreed  upon  by  the  parties.  But 
the  charge  of  a  guarantee  commission  gives  the  factor  no 
increased  authority  over  the  property,  (r.) 

SECTION  II. 
OF   FACTORS   UNDER   A   COMMISSION. 

Whether  a  factor  under  a  del  credere  commission  becomes 
thereby  a  principal  debtor  to  his  principal,  or  only  a  surety, 
has  been  somewhat  doubted  ;  [s)  but  it  appears  to  be  now 
settled  that  he  is  still  only  a  surety,  and  that  recourse  must 
be  had  first  to  the  principal  debtor,  on  whose  default  only  the 
factor  is  liable,  (i^)  It  seems,  however,  to  be  still  held,  that  the 
promise  of  the  factor  to  guarantee  the  debt  is  not  within  the 

(r)  Morriss  v.  Cleasby,  4  M  &  S.  566  ;  (s)  Grove  v.  Dubois,  1  T.  R.  1 12  :  Lev- 
Thompson  V.  Perkins,  3  Mason,  232,  erick  v.  Meigs,  1  Cowen,  645,  663,  664. 
and  cases  cited  by  Story,  J.  (t)  Houghton  v.  Matthews,  3  B.  &  P. 

[83] 


79 


THE   LAW   OF   CONTRACTS. 


[book  I. 


statute  of  frauds,  as  a  promise  to  pay  the  debt  of  another,  (u) 
If  he  takes  a  note  from  the  purchaser  of  the  goods,  this  note 
belongs  to  his  principal.  But  if  he  takes  depreciated  paper 
he  must  make  it  good,  (v)  If  money  be  paid  him  and  he 
remits  it,  he  does  not  guarantee  its  safe  arrival,  but  is  bound 
only  to  use  proper  means  and  proper  care,  (iv) 


SECTION  III. 
OF   THE   DUTIES   AND    THE   RIGHTS    OF   FACTORS    AND   BROKERS. 

A  broker  or  factor  is  bound  to  ordinary  care,  and  is  liable 
for  any  negligence,  error,  or  default,  incompatible  with  the 
care  and  skill  properly  belonging  to  the  business  that  he 
undertakes,  [x)  It  is  his  business  to  sell ;  but  the  power  to 
sell  does  not  necessarily  include  the  power  to  pledge.  This 
rule  was  formerly  applied  with  great  severity  ;  {//)  but  it  seems 


485  ;  Morris  v.  Cleasby,  4  M.  &  S.  566  ; 
Gall  I'.  Comber,  7  Taunt.  558  ;  Peele  v. 
Northcote,  7  Taunt.  478 ;  Couturier  v. 
Hastie,  16  E.  L.  &  E.  562 ;  Bradley  v. 
Eichardson,  23  Verm.  720;  Thompson 
V.  Perkins,  3  :Mason,  232  ;  Wolff  v. 
Koppel,  5  Hill,  (N.  Y.)  458.  Sec  Wolff 
V.  Koppel,  2  Denio,  368,  -where  conflict- 
ing opinions  are  given  on  this  question 
by  Porter  and  Hand,  Senators. 

(u)  Swan  r.  Nesmith,  7  Pick.  220. 
Wolff  V.  Koppell,  5  Hill,  (N.  Y.)  458  ; 
S.  C.  2  Denio,  368  ;  Couturier  r.  Has- 
tie, 16  E.  L.  &  E.  562  ;  Bradley  v. 
Eichardson,  23  Verm.  720. 

(v)  Dunnell  v-  Mason,  1  Story,  543. 

(iv)  Lucas  V.  Groning,  7  Taunt.  164; 
in  Muhler  v.  Bohlens,  2  Wash.  C.  C.  378, 
the  defendants  received  consignments 
from  the  plaintiff,  and  engaged  to  sell 
them  on  a  ckl  credere  commission,  and 
to  guarantee  the  debts.  They  sold  to 
one  Walters  part  of  the  goods,  and  when 
the  money  for  which  the  goods  were  sold 
became  due,  they  took  Walters's  bill  of 
exchange  for  the  amount,  and  remitted 
the  same  to  the  plaintiff.  They  also 
purchased  anotlier  bill  of  one  Imbcrt, 
which  they  also  remitted  to  the  plaintiff, 
in  part  payment  for  sales  of  his  goods. 
Walters  and  Imbert  failed,  and  the  bills 
were   protested ;   and   this   action   was 

[84] 


brought  to  recover  the  amount  on  de- 
fendants' guarantee.  Washington,  J., — 
"  The  guaranty  of  the  defendants  ex- 
tended no  farther  than  to  the  sales,  and 
receipts  of  the  money  arising  from  them. 
As  to  Imbert's  bill,  therefore,  there  is 
no  pretence  for  charging  the  defendants 
with  that,  as  it  was  a  bill  purchased  by 
the  defendants,  from  a  man  in  good 
credit,  and  it  was  purchased  for  the  pur- 
pose of  a  remittance,  as  the  defendants 
had  been  directed.  But  the  guaranty 
extends  to  Walters's  bill,  which  was  not 
purchased  with  the  proceeds  of  the  plain- 
tiff's goods,  but  was  given  by  a  pur- 
chaser of  those  goods  instead  of  money. 
If  the  defendants  were  bound  to  guar- 
antee the  payment  of  this  debt  when 
contracted,  the  guaranty  continues,  be- 
cause a  bill  which  is  dishonored  is  no 
payment." 

(x)  Vere  v.  Smith,  1  Vent.  121. 

(y)  The  factorcannot  pledge  the  goods 
of  his  principal  as  security  for  his  own 
debt.  Paterson  v.  Tash,"2  Str.  1178. 
The  principal  may  recover  goods  pledg- 
ed by  the  factor,  by  tendering  to  him 
the  sum  due  to  him,  without  any  tender 
to  the  pawnee.  Daubigny  v.  Duval,  5 
T.  R.  604  ;  M'Combie  v.  Davies,  7  East, 
5 ;  Solly  ;,'.  Rathbone,  2  M.  &  S.  298. 
See  also  De  Bouchout  v.  Goldsmid,  5 


CH.  IV.]  FACTORS   AND   BROKERS.  *80 

to  be  now  the  law,  aided  by  some  statutes  both  of  England 
*and  of  this  country,  (z)  that  he  may  pledge  the  goods  for 
advances  made  in  good  faith  for  his  principal,  and  perhaps 
otherwise  if  distinctly  for  the  use  and  benefit  of  the  princi- 
pal, (a)  or  for  advances  made  to  himself  to  the  extent  of  his 
lien ;  [b)  or,  perhaps  generally,  if  the  owner  has  clothed  the 
factor  with  all  the  indicia  of  ownership  so  as  to  enable  him 
to  mislead  others,  and  the  pledgee  had  no  notice  or  know- 
ledge that  he  was  not  owner  ;  (c)  and  he  may  pledge  nego- 
tiable paper  intrusted  to  him  by  his  principal,  to  a  party 
who  has  no  notice  or  knowledge  of  his  want  of  title,  (t/) 

He  is  bound  to  obey  precisely  positive  instructions,  but  not 
mere  wishes  or  inclinations;  (e)  and  will  be  justified  in  de- 
parting from  precise  instructions  if  an  unforeseen  emergency 
arises,  and  he  acts  in  good  faith  and  for  the  obvious  and 
certain  advantage  of  his  principal.  (/) 

Factors  or  Brokers  must  conform  to  the  usages  of  the 
business  ;  and  they  have  the  power  such  usages  would  give 
them,  and  can  bind  the  principal  only  to  a  usual  obligation. 
A  factor  need  not  advise  insurance,  still  less  make  insur- 
ance; but  having  possession  of  the  goods,  he  may  insure 
them  for  the  owner.  ("•)  A  factor  has  discretionary  power 
in  regard  to  the  time,  mode,  and  circumstances  of  a  sale  ; 

Ves.  211 ;  Martini  v.  Coles,  1  M.  &  S.  Keymer,  3  Esp.  182  ;  Urquhart  v.  Mc- 

140;  Fielding  y.  Kymer,  2  Br.  &  Bing.  Iver,   4   Johns.    103,    116.     "A  factor 

639  ;  Quciroz  v.  Trueman,  3  B.  &  C.  may  deliver  the  possession  of  goods  on 

342 ;  Kinder   v.    Shaw,   2   Mass.   398 ;  which  he  has  a  lien  to  a  third  person, 

Odiorne  v.  Maxcy,  13  Mass.  178  ;  Bowie  with  notice  of  the  lien  and  with  a  decla- 

17.  Napier,  1  McCord,  1 ;  Van  Amringe  tion  that  the  transfer  is  to  such  person 

V.  Peabody,  1   Mason,  440;  Whiuiker  as  agent  of  the  factor,  and  for  his  bene- 

on  Lien,  123,  136  ;  Rodriguez  v.  Heffer-  fit."     Kent,  C.  J. 

nan,  5  Johns.  Ch.  429.     He  cannot  bar-  (b)  Ibid. 

ter  the  goods  of  his  principal,  but  must  (c)  Boyson  v.  Coles,  6  M.  &  S.  14  ; 

sell  them  outright.     Guerreiro  v.  Peile,  Williams  v.  Barton,  3  Bing.  139. 

3  B.  &  Aid.  616.  (f/)   Collins   v.   Martin,    1    B.    &   P. 

(z)  See  ante,  p.  51*  n.  (g),  for  sta-  648 ;    Treuttel  v.  Barandon,  8    Taunt, 

tutes  which  regulate  the  power  of  the  100. 

factor  to  pledge  the  goods  of  his  prin-  (c)  Brown  v.  McGran,  14  Peters,  479  ; 

cipal.    For  interpretations  of  these  acts  Ekins  i>.  Marklish,  Ambler,  184;  Lucas 

see  Stevens   v.  Wilson,  6  Hill,  (N.  Y.)  v.  Groning,  7  Taunt.  164. 

512;  S.  C.  3  Denio,  472;  Zachrison  v.  (/)  Judson  v.  Sturges,  5  Day,  556; 

Ahman,  2  Sand.  Sup.  Ct.  68  ;  Jennings  Drummond  v.   Wood,  2   Caincs,   310; 

V.  Merrill,  20  Wend.  1  ;  Navulshaw  v.  Liotard  v.  Graves,  3  Caines,  226 ;  Law- 

Brownrigg,  13  E.  L.  &  E.  261.  ler  v.  Keaquick,  1  Johns.  Cas.  174  ;  For- 

(a)  Man   v.    Shiffner,    2    East,    523 ;  resticr  v.  Bordman,  1  Story,  43. 

M'Combio  v.  Davies,  7  East,  5  ;  Solly  (g)  De  Forest  v.  The  Fire  Insurance 

V.  Rathbone,  2  M.  &  S.  298  ;  Pultney  v.  Co.  I  Hall,  84. 

VOL.   I.                               8  [85] 


81*  THE   LAW   OP   CONTRACTS.  [BOOK  I. 

but  he  must  exercise  this  discretion  in  good  faith  ;  and  if  he 
•hastens  a  sale  improperly,  and  without  good  reason,  it  is 
void,  (h) 

A  factor  is  a  general  agent  from  the  nature  of  his  employ- 
ment ;  and  if  he  be  known  as  a  general  commission  merchant 
or  factor,  he  binds  the  principal  who  employs  him,  although 
for  the  first  time,  by  any  acts  fairly  within  the  scope  of  his 
employment,  even  if  they  transcend  the  limits  of  his  instruc- 
tions ;  if  the  party  dealing  with  him  had  no  knowledge  of 
those  limits. 

If  he  sends  goods  to  his  principal,  contrary  to  order  or 
to  his  duty,  the  principal  may  refuse  to  receive  them,  and 
may  return  them,  or  if  the  nature  of  the  goods  or  other  cir- 
cumstances make  it  obviously  for  the  interest  of  the  factor 
that  they  should  be  sold,  the  principal  may  sell  them  as  his 
agent,  (i) 

If  he  have  no  del  credere  commission,  he  may  still  be  per- 
sonally liable  to  his  principal ;  as  where  he  makes  himself 
liable  by  neglect  or  default ;  or  if  he  sells  the  goods  of  several 
principals  to  one  purchaser,  on  credit,  taking  a  note  to  him- 
self, and  getting  the  same  discounted,  (j)  Or  if  he  sells  on 
credit,  and  when  that  expires  takes  a  note  to  himself  (k) 
But  if  he  sells  on  credit  and  at  the  time  takes  a  negotiable 
note  which  is  not  paid,  the  loss  falls  on  the  principal,  although 
the  note  was  payable  to  the  factor.  (/) 

A  foreign  factor  is  one  who  acts  for  a  principal  in  another 
country;  a  domestic  factor  acts  in  the  same  country  with  his 
principal.  A  foreign  factor  is,  as  to  third  parties,  under  ordi- 
nary circumstances,  a  principal.  *And  though  his  principal 
may  sue  such  third  parties,  they  cannot  sue  his  principal,  for 

(/<)  Shaw  V.  Stone,  1  Ciish.  228,  248.  (i)  Kemp  v.  Prvor,  7  Ves.  Jr.  237, 

"But  it  seems,  if  the  sale  be  hurried  in  240,  247  ;    CornwaU  v.  Wilson,  1  Ves. 

order  to  enable  the  factor  to  realize  his  Sen.  509. 

advances,  and  is  not  made  in  due  course  (  •)  j^^^^^^  ^  ^^^       1   ^y^^,,,   C.  C. 

of  business,  it  xv.ll  he  void."     .     .     The  ^^^'^    p.  445;  Johnson  v.  O'Hara,  5 

agents  "were  bound  as  factors  to  sell  at  j^^j '^    ^^g       g'^^  not   necessarily   so. 

reasonable  and  fair  prices  ;  and  it  would  Ooodenow  v.  Tyler,  7  Mass.  36  ;  Corlies 

be  contrary  to  the.r  duty,  and  a  fraudu-  ^_  Oumming,  6  Cowen,  181. 
lent  proceeding  on  their  part  to  sell  the 

goods  at  a  greatly  reduced  price,  or,  in  (^)  Hosmer  v.  Beebe,  2  Martin,  N.  S. 

common  parlance,  to  sacrifice  them,  in  ^^^• 

order  the   more   hastily  to  realize  the  (/)  Messier  v.  Amery,  1  Yeates,  540 ; 

proceeds."     Shaw,  C.  J.  Goodenow  v.  Tyler,  7  Mass.  36. 

[86] 


CH.  IV.] 


FACTORS   AND   BROKERS. 


*82 


they  act  with  the  factor  only,  and  on  the  factor's  credit.  But 
*it  seems  to  be  otherwise  with  the  domestic  factor.  A  third 
party  dealing  with  him  may  have  a  claim  on  his  principal, 
unless  it  can  be  shown  that  credit  was  given  to  the  factor 
exclusively,  (m)  That  is,  in  the  case  of  a  foreign  factor  the 
presumption  of  law  is,  that  credit  was  given  to  him  exclu- 
sively;  in  the  case  of  a  domestic  factor,  that  credit  is  given 
to  his  principal.  It  seems  very  nearly  and  perhaps  quite  set- 
tled, that  for  the  purpose  of  this  rule,  our  States  are  not  foreign 
countries  to  each  other.  («) 


(m)  Paterson  v.  Gandasequi,  15  East, 
62;  Addison  v.  Gandasscqui,  4  Taunt. 
574.  The  following  authorities  distin- 
guish the  foreign  and  domestic  factors  : 
Gonzales  v.  Sladen,  Bull.  N.  P.  130  ; 
De  Gaillon  v.  L'Aigle,  1  B.  &  P.  368  ; 
Thomson  v.  Davenport,  9  B.  &  C  87; 
Kirkpatrick  v.  Stainer,  22  Wend.  244. 

(n)  In  Thomson  v.  Davenport,  9  B. 
&  Cr.  78,  a  purchaser  in  Liverpool  re- 
presented that  he  bought  for  persons  in 
Scotland,  but  did  not  mention  their 
names.  The  seller  did  not  inquire  who 
they  were,  and  debited  the  party  pur- 
chasing ;  and  it  was  held  tliat  he  might 
afterwards  sue  the  principal  for  the  price. 
Lord  Tenterden,  C.J,  said,  "  There  may 
be  another  case,  and  that  is  where  a 
British  merchant  is  buying  for  a  fo- 
reigner. According  to  the  universal  un- 
derstandincf  of  merchants,  and  of  all  per- 
sons in  trade,  the  credit  is  then  considered 
to  be  given  to  the  British  buyer,  and  not 
to  the  foreigner.  In  this  case,  the  buy- 
ers lived  at  Dumfries ;  and  a  question 
might  have  been  raised  for  the  consider- 
ation of  the  jury,  whether,  in  conse- 
quence of  their  living  at  Dumfries,  it 
may  not  have  been  understood  among 
all  persons  at  Liverpool,  where  there  are 
great  dealings  with  Scotch  houses,  that 
the  plaintiffs  had  given  credit  to  M'Kune 
only,  and  not  to  a  person  living,  though 
not  in  a  foreign  country,  yet,  in  that 
part  of  the  king's  dominions  which  ren- 
dered him  not  amenable  to  any  process 
of  our  courts.  But,  instead  of  direct- 
ing the  attention  of  the  Recorder  to  any 
matter  of  that  nature,  the  point  insisted 
upon  by  the  learned  counsel  at  the  trial 
was,  that  it  ought  to  have  been  part  of 
the  direction  to  the  jury,  that  if  they 
were  satisfied  the  plaintiffs,  at  the  time 
of  the  order  being  given,  knew  that 
M'Kune  was  buying  goods  for  another, 


even  though  his  principal  might  not  be 
made  known  to  them,  they,  by  after- 
wards debiting  M'Kune,  had  elected  him 
for  their  debtor.  The  point  made  by 
the  defendants'  counsel,  therefore,  was, 
that  if  the  plaintiffs  knew  that  M'Kune 
was  dealing  with  them  as  agent,  though 
they  did  know  the  name  of  the  prin- 
cipal, they  could  not  turn  round  on  him. 
The  Recorder  thought  otiierwise :  he 
thought  that  though  tliey  did  know  that 
M'Kune  was  buying  as  agent,  yet  if 
they  did  not  know  who  his  principal 
really  was,  so  as  to  be  able  to  write  him 
down  as  their  debtor,  the  defendant  was 
liable,  and  so  he  left  the  question  to  the 
jury,  and  I  think  he  did  right  in  so  do- 
ing. The  judgment  of  the  court  below 
must  therefore  be  affirmed." — In  Kirk- 
patrick V.  Stainer,  22  Wend.  244,  an 
agent  of  a  foreign  mercantile  house  who 
induced  a  merchant  here  to  make  a  ship- 
ment of  goods  to  his  princii)als,  to  be 
sold  on  commission,  and  engaged  that 
insurance  should  be  effected  either  here  or 
in  Europe  on  the  property  shipped,  had 
been  held  by  the  Supreme  Court  not  to 
be  personally  liable  for  a  breach  of  the 
agreement  to  insure  ;  the  action,  if  main- 
tainable, lay  only  against  the  principals. 
This  decision  of  the  Supreme  Court 
was  confirmed  by  the  Court  of  Errors, 
the  Chancellor,  (Walworth,)  with  some 
other  members  of  the  court,  dissenting, 
for  reasons  which  certainly  seem  to  have 
much  weight,  although  they  did  not  suf- 
fice to  convince  a  majority  of  the  Court 
of  Errors.  On  the  precise  question  be- 
fore us,  the  Chancellor  says,  "  Upon  a 
careful  examination  of  the  law  on  this 
subject,  I  have  arrived  at  the  conclusion 
that  there  is  a  well-settled  distinction 
between  the  personal  liability  of  an 
agent,  who  contracts  for  the  benefit  of 
a  domestic  principal,  and  one  who  con- 

[87] 


83 


THE   LAW   OF   CONTRACTS. 


[book  I. 


The  factor  and  the  principal  may  sometimes  have  conflict- 
ing claims  against  a  purchaser;  as  the  factor  for  his  lien  for 
advances,  &c,,  and  the  principal  for  his  price.  In  general  it 
may  be  said  that  a  purchaser  who  pays  to  either,  will  be  pro- 
tected against  the  other,  if  he  have  no  notice  or  knowledge 
of  any  valid  claim  or  right  belonging  to  the  other,  (o)  But, 
excepting  when  such  rights  exist  in  the  factor,  the  principal 


tracts  for  a  principal  who  is  domiciled  in 
a  foreign  country.  I  do  not  think  that  by- 
cur  commercial  usage  it  is  applicable  to 
the  case  of  a  principal  who  is  domiciled 
in  another  State  of  the  Union ;  as  the 
interests  of  trade  do  not  seem  to  require 
it.  Besides,  it  does  not  appear  to  have 
been  applied  in  England  to  the  case  of 
a  principal  residing  in  Scotland ;  al- 
though in  the  case  of  Thomson  v.  Da- 
venport, before  referred  to,  Lord  Tenter- 
den  supposed  it  might  have  been  a  pro- 
per subject  of  inquiry  for  the  jury, 
whether  there  was  not  a  usage  of  trade 
at  Liverpool  to  give  the  credit  to  the 
agent  where  the  principal  resided  in 
Scotland.  So  far  as  the  law  is  settled 
on  the  subject,  however,  it  only  applies 
to  a  principal  domiciled  in  a  foreign 
country ;  or,  in  the  language  of  the  com- 
mon law,  '  beyond  the  seas.' "  Senator 
Verplank  gave  the  only  other  opinion. 
He  thought  the  Supreme  Court  right, 
and  the  majority  of  the  Court  of  Errors 
agreed  with  him.  But  he  rests  his  opi- 
nion on  the  ground,  that  the  English 
rule,  that  the  factor  of  a  foreign  princi- 
pal is  himself  liable  to  the  exclusion  of 
the  principal,  rests  entirely  upon  the 
custom  of  trade  in  England,  and  is  no 
part  of  the  common  law,  nor  of  the  law- 
merchant  generally ;  and  is  not  the  law 
of  this  country,  unless  a  particular  cus- 
tom could  be  proved  which  should  give 
that  effect  to  the  contract.  And  there- 
fore, in  the  absence  of  such  evidence  of 
custom,  the  principal  is  liable  as  in  other 
cases  of  contracts  by  an  agent  for  a  prin- 
cipal. Such  would  seem  to  be  the  au- 
thority of  this  case  ;  but  we  nevertheless 
hold  the  rule  to  be  as  stated  in  our  text. 
In  Taintor  v.  Prendergast,  3  Hill,  (N.  Y.) 
72,  Cowen,  J.,  says,  "  This  suit  was 
brought  to  recover  a  sum  of  money  ad- 
vanced to  the  defendant,  a  citizen  of  this 
State,  in  part  payment  for  a  quantity  of 
wool  which  he  agreed  to  deliver  to  the 
plaintiff's  agent.  The  contract  was  made 
[88] 


by  the  latter  without  disclosing  the  name 
of  his  principal,  who  was  a  merchant  re- 
siding at  Hartford,  Connecticut.  The 
agent  was  a  resident  of  this  State.  The 
wool  was  not  delivered  as  agreed,  and 
the  question  is,  whether  an  action  can  be 
maintained  by  the  principal.  It  may  be 
admitted,  as  was  urged  in  the  argument, 
that  whether  the  principal  be  considered 
a  foreigner  or  not,  his  agent  omitting  to 
disclose  his  name,  would  be  personally 
liable  to  an  action.  Even  in  case  of  a 
foreign  principal,  however  I  apprehend 
it  would  be  too  strong  to  say,  that  when 
discovered  he  would  not  be  liable  for  the 
price  of  tlie  commodity  purchased  by  his 
agent.  This  may  indeed  be  said,  when 
a  clear  intent  is  shown  to  give  an  exclu- 
sive credit  to  the  agent.  I  admit  that 
such  intent  may  be  inferred  from  the 
custom  of  trade,  where  the  purchaser  is 
known  to  live  in  a  foreign  country.  No 
custom  was  shown  or  pretended  in  the 
case  at  bar ;  and  where  the  parties  reside 
in  different  States  under  the  same  con- 
federation, this  has  been  held  essential 
to  exonerate  the  principal.  (Thomson 
V.  Davenport,  9  B.  &  Cr.  78.)  It  will 
be  seen  by  this  case  and  others  referred 
to  by  it,  that  the  usual  and  decisive  indi- 
cation of  an  exclusive  credit  is  where  the 
creditor  knows  there  is  a  foreign  princi- 
pal, but  makes  his  charge  in  account 
against  the  agent.  If  the  seller  be  kept 
in  ignorance  that  he  is  selling  to  an 
agent  or  factor,  I  am  not  aware  of  a 
case  which  denies  a  concurrent  remedy." 
We  understand  the  court  to  mean,  that 
where  the  principal  purchaser  is  known, 
and  is  known  to  live  in  a  foreign  coun- 
try, there  the  existing  custom  of  trade 
leads  to  the  inference  that  credit  was 
given  exclusively  to  the  agent.  And 
this  we  think  the  true  rule. 

(o)  Drinkwater  v.  Goodwin,  Cowper, 
251;  Atkyns  v.  Amber,  3  Esp.  493; 
Coppin  V.  Craig,  7  Taunt.  243  ;  Hudson 
V.  Granger,  5  B.  &  Aid.  27. 


CH.  IV.]  FACTORS   AND   BROKERS.  *84 

has  a  higher  right  than  he,  and  may  enforce  a  contract  with  a 
third  party,  for  his  own  benefit. 

*A  factor  may  buy  and  sell,  sue  and  be  sued,  collect  money, 
receive  payments,  give  receipts,  &c.  in  his  own  name ;  but  a 
broker  only  in  the  name  of  his  principal,  (p)  A  factor  has  a 
lien  on  the  property  in  his  hands,  for  his  commission,  ad- 
vances, and  expenses ;  (q)  but  as  possession  is  necessary  to 
give  a  lien,  a  broker  has  no  lien,  (r)  In  the  transaction  of 
business  these  relations  are  sometimes  confounded,  and  it  is 
not  always  easy  to  distinguish  between  the  factor  and  the 
broker.  The  best  test,  however,  is  in  the  fact  of  possession  ; 
but  even  with  this  a  party  may  sometimes  be  held  to  be  a 
broker,  (s)  Neither  can  delegate  his  authority.  (^)  The 
broker  may  certainly  be  the  agent  of  both  parties,  and  often 
is  so ;  but  it  would  seem  from  the  nature  of  his  employment, 
that  the  factor  can  be,  generally  at  least,  the  agent  onlv  of  the 
party  who  employs  him. 

Neither  has  a  right  to  his  commissions,  as  a  general 
rule,  until  the  whole  service,  for  which  these  commissions  are 
to  compensate,  is  performed,  (u)  But  where  the  service  is 
begun,  and  an  important  part  performed,  and  the  factor  or 
broker  is  prevented  by  some  irresistible  obstacle  from  com- 
pleting it,  and  is  himself  without  fault,  there  it  would  seem 
that  he  may  demand  a  proportionate  compensation,  (v)  Nei- 
ther can  have  any  valid  claim  for  his  commissions  or  other 
compensation,  if  he  has  not  discharged  all  the  duties  of  the 
employment  which  he  has  undertaken,  with  proper  care  and 

(p)  Barino:  v.  Corrie,  2  B.  &  Aid.  143 ;  &c.  Co.,  1  Curtis  130 ;  Bank  of  Roches- 

Hearshy  v.  Hichox,  7  Eng.  (Ark.)  125.  ter  v.  Jones,  4  Corns.  497. 

(7)  Williams  v.  Littlefield,  12  Wend.  (r)  See  Jordan  v.  James,  5  Ham.  99 
362;  Holbrooke.  Wight,  24  Wend.  169;  where  the  several  classes  of  liens  are' 
The  factor  has  a  general  lien,  to  secure  discussed,  and  the  cases  cited.  But  it  is 
all  advances  and  liabilities,  upon  all  of  the  very  essence  of  a  lien  that  posses- 
goods  which  come  to  his  hands  as  factor,  sion  accompanies  it. 
Godin  V.  London  Assur.  Co.  1  Burr.  (s)  Pickei-ing  v.  Busk,  15  East,  38 
494;  HoUingworth  v.  Tooke,  2  H.  Bl.  (t)  Catlin  ?;.  Bell,  4  Camp.  183  ;  Solly 
501  ;  Cowel  v.  Simpson,  16  Ves.  276;  v.  Kathbone,  and  Cockran  v.  Irlam  in 
Stevens  v.  Robins,  12  Mass.  180 ;  Bryce  note  (a),  2  M.  &  S.  298. 
r.  Brooks,  26  Wend.  367  ;  The  Frances,  (u)  Hamond  v.  Holiday,  1  C.  &  P. 
8  Cranch,  419;  Dixon  v.  Stansfield,  11  384;  Dalton  v.  Irvin,  4'C.  &  P.  289: 
E.  L.  &E.  528.  And  the  factor  obtains  Broad  i'.  Thomas,  7  Bing.  99.  " 
an  interest  sufficient  to  support  his  lien,  (v)  Hamond  v.  Holiday,  1  C.  &  P. 
upon  accepting  a  draft  drawn  upon  the  384;  Broad  v.  Thomas, '7  Bing.  99- 
faith  of  the  goods.  Nesmith  v.  Dyeing  Read  v.  Rann,  10  B.  &  C.  438.  ' 
8*  [89] 


85*  THE   LAW   OF   CONTRACTS.  [BOOK   I. 

skill,  and  entire  fidelity,  (w)  And  for  his  injurious  default,  he 
not  only  loses  his  claim,  but  the  principal  has  a  claim  for  da- 
*  mages,  (x)  And  if  he  has  stipulated  to  give  his  whole  time 
to  his  employer,  he  will  not  be  permitted  to  derive  any  com- 
pensation from  services  rendered  elsewhere,  (i/)  Neither  the 
factor  nor  broker  can  acquire  any  claim  by  services  which  are 
in  themselves  illegal  or  immoral,  or  against  public  policy,  (z) 
If  a  factor,  with  power  to  sell,  has  made  advances  to  his 
principal,  it  is  not  quite  certain  whether  these  advances  take 
from  the  principal  the  power  of  revocation.  From  the  cases 
it  would  seem,  that  the  weight  of  authority  in  this  country  is 
against  the  power  of  the  principal  to  revoke  an  authority 
which  has  thus  become  coupled  with  an  interest.  But  in 
England  it  seems  to  be  otherwise,  (a) 

(w)  Denew  v.  Daverell,  3  Camp.  451 ;  (x)  See  note  (a,)  p.  74*. 

Hamond  v.  Holiday,  1  C.  &  P.  384;  (y)  Thompson  v.  Havelock,  1  Camp. 

White  V.  Chapman,  1  Stark.  113;  Hm'st  527  and  cases  cited  in  note;  Massey  v. 

u.  Holding:,  3  Taunt.  32 ;  Dodge  I'.  Tile-  Davies,   2   Ves.  Jr.  317;    Gardner  v. 

ston,  12  Pick.  328.     See  also  Shaw  v.  M'Cutcheon,  4  Beavan,  534. 

Arden,  9  Bing.  287 ;    Hill  v.  Peather-  (~)  Haines  v.  Busk,   5    Taunt.   521 ; 

stonhaugh,  7  Bing.  569.    As  to  his  duty  Josephs  v.  Pebber,  3  B.  &  C.  639 ;  Wy- 

to  keep  accounts,  see  White  v.  Lady  burd  v.  Stanton,  4  Esp.  179;   Buck  v. 

Lincoln,  8  Ves.  363.     He  must  not  con-  Buck,  1  Camp.  547  ;  and  Rex  v.  Shat- 

found  the  principal's  property  with  his  ton,  in  note;  Armstrong  v.  Toler,  11 

own.     Lupton  v.  White,  15  Ves.   432.  Wheat,  258. 

He  cannot  recover  his  compensation  if  (a)  See  note  (h,)  p.  58,  in  which  the 

he  has  embezzled  the  principal's  funds,  cases  on  this  question  are  given  in  con- 

although  it  exceeds  the  amount  embez-  nection  with  the  more  general  subject  of 

zled.    Turner  v.  Robinson,  6  C.  &  P.  a  revocation  of  an  authority  coupled 

16,  note  (g.)  with  an  interest. 
[90] 


CH.   v.]  SERVANTS.  86 


CHAPTER  V. 

SERVANTS. 

In  England  the  relation  of  master  and  servant  is  in  many 
respects  regulated  by  statutory  provisions,  and  upon  some 
points  is  materially  affected  by  the  existing  distinction  of 
ranks,  and  by  rules  which  have  come  down  from  periods  when 
this  distinction  was  more  marked  and  more  operative  than  at 
present.  In  this  country  we  have  nothing  of  this  kind.  With 
us,  a  contract  for  service  is  construed  and  governed  only  by 
the  general  principles  of  the  law  of  contracts. 

The  word  servant  seems  to  have  in  law  two  meanings.  One 
is  that  which  it  has  in  common  use,  when  it  indicates  a  person 
hired  by  another  for  wages,  to  work  for  him  as  he  may  direct. 
We  may  call  such  a  person  a  servant  in  fact ;  but  the  word  is 
also  used  in  many  cases  to  indicate  a  servant  by  construction  of 
law ;  it  is  sometimes  applied  to  any  person  employed  by  an- 
other, and  is  scarcely  to  be  discriminated  in  these  instances 
from  the  word  agent.  This  looseness  in  the  use  of  the  word 
is  the  more  to  be  regretted,  because  it  seems  to  have  given 
rise  to  some  legal  difficulties  and  questions  which  might  have 
been  avoided.  There  are  important  consequences  flowing 
from  the  relation  of  master  and  servant,  and  it  is  therefore  an 
important  question,  where  this  relation  exists,  and  how  far  it 
extends.  Thus,  if  one  wishes  to  build  or  repair  a  house,  and 
contracts  with  another  to  do  this,  and  the  contractor  with 
another,  and  this  other  with  still  a  third,  for  perhaps  a  part  of 
the  work,  or  the  supply  of  materials,  and  the  servant  of  the 
third  by  his  negligence  injures  some  person,  has  the  injured 
party  his  right  of  action  against  the  owner  of  the  land  or  of 
the  house?  Undoubtedly  if  all  employed  about  the  house 
were  his  servants,  but  not  otherwise.  So  if  an  owner  of  coaches 
lets  one  with  the  horses  and  the  coachman  for  a  definite  time 
or  a  definite  journey,  and  while  the  hirer  is  using  the  coach 
the  coachman  by  his  negligence  injures  a  person ;  has  the 

[91] 


87  THE   LAAV   OF    CONTRACTS.  [BOOK  I. 

injured  party  now  an  action  against  the  owner  ?  Yes,  if 
the  coachman  were  at  the  time  of  the  wrongful  act  his  ser- 
vant, and  not  otherwise.  Again,  if  one  employs  a  person  to 
drive  home  for  him  cattle  which  he  has  bought,  and  gives  the 
cattle  up  to  the  driver,  going  elsewhere  himself,  and  the  driver, 
or  a  person  employed  by  the  driver,  by  his  negligence,  injures 
any  one,  the  injured  person  has,  we  think,  as  in  the  other  in- 
stances, an  action  against  the  original  party,  if  the  party  who 
did  the  wrong  were  at  the  time  his  servant,  and  not  otherwise. 
The  general  principle  is,  that  a  master  is  responsible  for  the 
tortious  acts  of  his  servant,  ichich  ivere  done  in  his  service.  It 
is  certain  and  obvious  that  a  master  is  not  responsible  for  all 
the  torts  of  his  servant ;  for  those,  for  instance,  of  which  the 
servant  is  guilty,  when  they  are  entirely  aside  from  his  ser- 
vice, and  have  no  connection  with  his  duties,  or  with  the  com- 
mand or  the  wish  of  his  master ;  as  if  he  should  leave  his 
master's  house  at  night  and  commit  a  felony.  There  must, 
then,  be  some  principle  which  limits  and  defines  the  rule,  re- 
spondeat  superior.  And  we  think  it  may  be  clearly  seen  and 
stated.  It  is  this  :  the  responsibility  of  the  master  grows  out 
of,  is  measured  by,  and  begins  and  ends  with  his  control  of 
the  servant,  (ad)     It  is  true  that  the  policy  of  holding  a  mas- 

{aa)  On  this  ground  rests  the  distinc-  In  Sinclair  v.  Pearson,  7  New  Ham  p. 
tioti,  now  well  established,  between  tlie  227,  Parker,  J.,  givinf^  the  judgment, 
negliijence  of  the  servant,  and  his  wilful  said,  "  It  is  evident,  therefore,  yiat  the 
and  malicious  trespass:  —  the  act  in  ei-  liability  of  a  bailee,  for  a  loss  occasioned 
ther  case  being  done  in  the  course  of  his  by  the  act  of  a  servant,  cannot  be  made 
employ.  For  the  former  the  master  to  depend  upon  the  question  whether 
must  answer;  for  the  latter  he  is  held  the  act  was  wilful  or  otherwise;  or 
not  liable,  unless  the  trespass  is  proved  whether  the  servant,  in  committing  it, 
to  have  been  authorized  or  ratified  by  was  doing,  or  forbearing,  what  iiis 
him.  McManus  y.  Crickctt,  1  East,  106;  master  had  directed;  for  if  that  were 
Croft  V.  Alison,  4  B.  &  Aid.  590;  Ly-  the  criterion,  the  bailee  would  never  be 
ens  V.  Martin,  8  A.  &  El.  512;  Good-  liable  for  the  act  or  neglect  of  his  ser- 
man  v.  Kennell,  1  M.  &  Payne,  241,  3  vant,  unless  done  by  his  command, 
C.  &  P-  167  ;  Foster  v.  Essex  Banl^,  17  either  expressed,  or  in  fact  to  be  in- 
Mass.  479  ;  Wright  w.  Wilcox,  19  Wend,  ferred;  but  it  must  depend  upon  the 
343  ;  Vanderbilt  v.  Richmond  Turnpike  question  whether  the  degree  of  care  and 
Co.  2  Comst.  479.  —  But  it  seems  that  diligence  required  about  the  preserva- 
where  the  duty  of  the  master  to  the  tion,  safe-keeping,  &c.,  of  the  thing 
party  whose  property  is  injured,  is  not  bailed,  has  been  exercised  by  master 
merely  that  which  every  man  owes  to  and  servant."  And  Ellis  v.  Turner,  8 
his  neighbor,  but  a  peculiar  duty  arising  T.  R.  531,  was  refeiTcd  to,  where  a  loss 
from  a  special  relation,  there  tliat  spe-  of  part  of  a  cargo  having  occurred  in 
cial  relation  may  occasion  a  liability  consequence  of  the  misconduct  of  the 
even  for  the  wilful  tort  of  tlie  servant,  master  of  the  vessel,  and  an  action 
As  where  the  relation  is  one  of  bailment,  having  been  brought  by  the  owner  of  the 
[92] 


CH.  v.] 


SERVANTS. 


ter  to  a  reasonable  care  and  discretion  in  the  choice  of  a  ser- 
vant may  cause  a  liberal  construction  of  the  rule  in  respect  to 
an  injured  party,  and  may  therefore  be  satisfied  in  some  in- 
stances with  a  slight  degree  of  actual  control ;  but  of  the 
soundness  and  general  applicability  of  the  principle  itself,  we 
do  not  doubt ;  nor  do  we  see  any  greater  difficulty  in  the  ap- 
plication of  the  principle  than  may  always  be  apprehended 
from  the  variety  and  complexity  of  the  facts  to  which  this 
and  other  legal  principles  may  be  applied.  The  master  is 
responsible  for  what  is  done  by  one  who  is  his  servant  in  fact, 
for  the  reason  that  he  has  such  servant  under  his  constant  con- 
trol, and  may  direct  him  from  time  to  time  as  he  sees  fit;  and 
therefore  the  acts  of  the  servant  are  the  acts  of  the  master, 
because  the  servant  is  at  all  times  only  an  instrument ;  and 
one  is  not  liable  for  a  person  who  is  a  servant  only  by  con- 
struction, excepting  so  far  as  this  essential  element  of  con- 
trol and  direction  exists  between  them.    We  should  therefore 


goods  against  the  owners  of  the  vessel, 
Lord  Kemjon  said.  "  Though  the  loss 
happened  in  consequence  of  the  mis- 
conduct of  the  defendants'  servant,  the 
superiors  (the  defendants)  are  answer- 
able for  it  in  this  action.  The  defend- 
ants are  responsible  for  the  acts  of  their 
servant  in  those  things  that  respect  his 
duty  under  them,  though  they  are  not 
answei'able  for  his  misconduct  in  those 
things  that  do  not  respect  his  duty  to 
them :  as  if  he  were  to  commit  an  as- 
sault upon  a  third  person  in  the  course 
of  his  voyage." —  The  rule  established 
in  McManus  v.  Crickett,  is  criticized  by 
Reeve,  Dom.  Eel.  357,  and  in  the  case 
of  the  Uruid,  1  Wm.  Rob.  405,  Dr. 
Lmhinyton  commented  in  forcible  terms 
upon  the  hardship  of  the  rule,  and  ex- 
pressed regret  at  its  adoption.  —  If  a 
master  give  general  directions  which 
naturally  occasion  the  commission  of 
a  tort  by  the  servant  executing  them, 
the  master  is  liable,  notwithstanding  he 
never  conmianded  that  particular  act. 
Rex  V.  Nutt,  Fitzg.  47  ;  Lord  Tenterden, 
Rex  V.  Gutch,  M.  &  Malk.  437,  438; 
Attorney-General  v.  Siddon,  1  Tyr.  49  ; 
Gregory  v.  Piper,  9  B.  &  C.  591  ;  Lord 
Lonsdale  v.  Littledale,  2  H.  Bl.  267, 
299;  Sly  v.  Edgley,  6  Esp.  6.  And 
where  the  servant  is  in  the  employ  of 
the  master,  and  the  acts  complained  of 


are  done  in  the  course  of  the  employ- 
ment, the  master  is  responsible  although 
the  acts  were  done  in  a  way  directly 
contrary  to  his  instructions.  Philadel- 
phia and  Reading  Railroad  i?.  Derby,  14 
How.  S.  C.  468 ;  Southwick  v.  Estes,  7 
Cush.  385.  —  But  in  cases  where  the 
master  is  held  liable  on  the  ground  of 
an  nn/j/i'ef/ authority  to  the  servant  to  do 
the  particular  act  for  him,  if  the  tort  is 
a  trespass  on  the  part  of  the  servant,  the 
master  must  not  be  sued  in  trespass,  but 
case.  Gordon  v.  Rolt,  4  Exch.  365 ; 
Sharrod  v.  London  &  N.  Western  Rail- 
way Co.  20  Law  J.  Rep.  (N.  S.)  Exch. 
185,  4  E.  L.  &  E.  401,  where  a  rail- 
way train,  driven  at  the  rate  of  forty 
miles  an  hour,  according  to  the  general 
directions  of  the  company  to  the  driver, 
ran  over  and  killed  some  sheep  which 
had  strayed  upon  the  line  in  conse- 
quence of  the  defective  fences  of  the 
company.  It  appeared  that  if  the  driver 
(running  the  engine  at  the  speed  direct- 
ed) had  seen  the  sheep,  he  could  not 
have  stopped  the  train  in  time  to  pre- 
vent the  collision.  Held,  that  the  com- 
pany were  not  liable  in  trespass  for  the 
injury ;  but  that  the  action  should  have 
been  case,  either  for  permitting  the 
fences  to  be  out  of  repair,  or  for  direct- 
ing the  servant  to  drive  at  such  a  rate 
as  to  interfere  with  tTie  right  of  the 
[93]     . 


89 


THE  LAW  OF   CONTRACTS. 


[book  I. 


say  that,  in  the  instances  we  have  before  supposed,  the  owner 
of  the  land  or  the  house  was  not  responsible  for  the  tort  of 
the  servant  of  the  subcontractor,  nor  would  he  have  been  for 
the  tort  of  the  subcontractor  or  of  the  first  contractor.  They 
were  not  his  servants  in  any  sense  whatever  ;  they  were  to 
do  a  job,  and  when  this  was  done  he  was  to  pay  the  party 
whom  he  had  promised  to  pay ;  and  this  was  all.  In  accord- 
ance with  this  rule  it  is  settled  that  where  the  negligent  party 
exercises  a  distinct  and  independent  calling  his  employer  is 
not  liable,  [b)  and  if  the  negligence  be  committed  in  the  per- 
formance of  a  piece  of  work  undertaken  in  consequence  of  a 
special  contract,  in  such  case  the  contractor  is  solely  respons- 
ible, [hb)  Nor  does  it  make  any  difference  if  the  contractor 
be,  in  matters  beside  the  contract,  the  servant  of  the  other 
contracting  party,  {be)  And  the  party  with  whom  the  con- 
tractor engages  is  not  liable,  although  acts  are  done  by  the 
contractor  or  his  servants  amounting  to  a  public  nuisance, 
so  long  as  the  act  contracted  for  is  not  in  itself  a  nuisance, 
{bd)  Yet  if  the  act  to  be  done  be  itself  an  unlawful  one,  or 
necessarily  involves  in  its  performance  the  commission  of  a 
public  nuisance,  the  employer  is  not  discharged  from  liability 
on  the  ground  that  the  party  employed  was  a  contractor, 
because  in  such  case  he  has  complete  control,  and  expressly 
commands  the  act  to  be  done,  [be)      But   if  the  contract- 


sheep  to  be  on  the  railway.  It  was 
observed  in  the  judgment,  that,  not- 
withstanding the  order  to  the  driver  to 
proceed  at  a  great  speed,  it  did  not  fol- 
low as  a  necessary  consequence  that  the 
engine  would  infringe  on  the  plaintiff's 
cattle ;  and  the  case  was  distinguished 
from  Gregory  v.  Piper,  9  B.  &  C.  591, 
on  this  ground. 

{b)  Milligan  v.  Wedge,  12  Ad.  &  El. 
737  ;  Martin  v.  Temperley,  4  Q.  B. 
298  ;  DeForrest  v.  Wright,  2  Mich.  368. 

[hb)  Allen  V.  Hayward,  7   Q.  B.  960. 

[be)  Knight  v.  Fox,  5  Exch.  72,  1  E. 
L.  &E.  477. 

[bd)  Overton  v.  Freeman,  3  Carr.  & 
Kir.  49,  8E.L.  &  E.  479,  S.  C. 

[be]  Peachey  v.  Rowland,  16  E.  L.  & 
E.  442 ;  Ellis  v.  Sheffield  Gas  Consum- 
ers Co.  22  E.  ^i.  &  E.  198. —It  is  a 
consequence  from  the  principles  stated 

[94] 


in  the  text,  that  if  a  contractor  himself 
employ  a  servant,  he,  and  not  the 
original  employer,  is  liable  for  the  con- 
duct of  that  servant.  And  the  general 
employer  does  not  become  liable  even  if 
he  have  a  degree  of  control  over  the 
servant,  and  the  power  of  removal,  pro- 
vided this  authority  is  not  so  extensive 
as  in  effect  to  render  the  servant  no 
longer  tlie  contractor's  servant.  Where 
a  company,  empowered  by  act  of  Par- 
liament to  construct  a  railway,  con- 
tracted with  certain  persons  to  make  a 
portion  of  the  line,  and  by  the  contract 
reserved  to  themselves  the  power  of  dis- 
missing any  of  the  contractors'  work- 
men for  incompetence ;  and  the  work- 
men, in  constructing  a  bridge  over  a 
public  highway,  negligently  caused  the 
death  of  a  person  passing  beneath  the 
highway,  by  allowing  a  stone  to  fall 


CH.  v.] 


SERVANTS. 


*90-*91-*92 


ing  party  employs  *persons  to  do  the  work,  not  on  a  contract, 
but  on  days'  wages,  he  would  still  retain  the  power  of  direct- 
ing them  *from  day  to  day  in  their  work  ;  and  this  would  ren- 
der him  liable.  But  we  should  still  hold,  that  if  the  work 
done  at  day  wages  were  such  as  to  carry  with  it  no  implica- 
tion or  probability  of  actual  supervision  or  control,  and  none 
such  were  proved  in  fact,  the  employer  would  not  be  liable. 
For  the  same  reason  we  should  say  that  the  owner  and  letter 
of  a  coach,  horses,  and  coachman,  was  or  was  not  responsible 
to  one  injured  by  *the  negligence  of  the  coachman,  as  the 
terms  of  the  hiring  and  the  circumstances  of  the  case  led 
to  the  conclusion  that  the  coachman  was  or  not  at  the  time  of 
the  negligence  the  servant  of  the  owner  or  of  the  hirer  of  the 
coach,  (bf)     The  owner  might  doubtless  be  held  responsible 


upon  him  :  —  Held^  in  an  action  against 
the  company,  upon  stat.  9  &  10  Vict. 
c.  93.  by  the  administratrix  of  the  de- 
ceased, that  they  were  not  liable ;  and 
that  the  terms  of  the  contract  in  ques- 
tion did  not  make  any  difference. 
Reedie  v.  London  &  North  Western 
Railway  Co.  4  Exch.  244. 

Yet  a  man  is  none  the  less  liable  for 
the  neghgence  of  his  own  servants  be- 
cause they  were  not  directly  employed 
by  him,  but  mediately,  through  the  in- 
tervention of  another,  whom  he  has  au- 
thorized to  appoint  servants  for  him. 
And  Litthdale,  J.,  in  the  able  opinion  so 
much  cited,  instances  several  cases 
where  the  liability  exists,  although  the 
master  has  neither  the  direct  appoint- 
ment nor  the  superintendence  of  the 
servants ;  as  the  liability  of  a  ship-owner 
for  the  crew  selected  and  governed  by 
the  master;  of  the  owner  of  a  farm, 
who  conducts  its  operations  through  a 
bailiff,  for  the  inferior  working  men 
hired  by  the  bailiff;  and  of  the  owner 
of  a  mine  for  the  workmen  employed 
by  his  steward,  and  paid  by  him  on  be- 
half of  the  master.  To  which  may  be 
added  the  liabihty  of  the  owner  of  a 
chartered  ship  for  the  negligence  of  the 
crew  while  under  the  immediate  direc- 
tion of  the  charterer.  See  Fenton  v. 
Dublin  Steam  Packet  Co.  8  A.  &  El. 
8.35.  The  following  convenient  tests 
for  ascertaining  in  a  particular  case 
whether  a  certain  person  was  the  master 
of  the  servants   in   question,  are   sug- 


gested by  Coleridge.  J. ,7  Jur.  152  :  Had 
he  the  power  of  selecting  them  ?  —  was 
he  the  party  to  pay  them  ? —  were  they 
doing  his  work  ?  —  were  they  doing 
that  work  under  his  control  in  the  ordi- 
nary way? — Where  the  other  elements  of 
liability  exist,  it  is  no  defence  that  the 
master,  voluntarily  performing  part  of 
his  work  by  means  of  servants,  was 
obliged  by  law  to  take  those  servants 
from  a  prescribed  class.  Whether  he 
would  be  liable  where  the  law  absolute- 
ly forbade  him  to  do  that  part  of  his 
business  himself,  and  still  allowed  him 
to  select  out  of  a  class  more  or  less 
numerous,  is  perhaps  unsettled,  but  the 
probability  is  he  would  still  be  held. 
Where  there  is  this  personal  prohibition, 
and  also  an  obligation  by  law  to  take  a 
particular  individual,  and  thus  no  liberty 
of  choice  wiiatever  is  permitted,  it  seems 
the  master's  liability  ceases.  See  Mar- 
tin V.  Temperlev,  7  Jur.  150,  4  Q.  B. 
298;  The  Agricola,  2  Wm.  Rob.  10; 
The  Maria,  1  Wm.  Rob.  95  ;  Lucy  v. 
Ingram,  6  M.  &  W.  .302  ;  Yates  v. 
Brown,  8  Pick.  23  ;  Stone  v.  Codman, 
15  Pick.  297  ;  Lowell  u.  Boston  &  Lowell 
Railroad,  23  Pick.  24  ;  Sproul  v.  Hem- 
ming way,  14  Pick.  1  ;  Ruffin,  C.  J.,  in 
Wiswall  V.  Brinson,  10  Ire.  L.  563. 

(/)/")  A  party  who  is  not  the  general 
master  of  a  servant  may  make  him  his 
servant  in  a  particular  transaction,  by 
specially  directing  him  thereto,  or  by  a 
subsequent  adoption  of  what  he  has 
done ;  and  in  this  way  a  special  liabil- 

[95] 


-92 


THE   LAW   OF   CONTRACTS. 


[book  r. 


to  the  hirer,  if  the  injured  party  compelled  him  to  make  com- 
pensation, and  it  could  be  shown  that  the  owner  had  know- 
ingly employed  an  insufficient  and  dangerous  servant;  for 
this  would  be  only  to  hold  him  responsible  for  his  own  neg- 
ligence. The  rule  we  have  given  would  not  require  the  tort 
to  be  committed  in  the  master's  presence  in  order  to  hold 
him  responsible.     It  is  enough  if  when  the  tort  was  com- 


ity may  be  incurred.  And  in  Quarraan 
V.  Burnett,  6  M.  &  W.  508,  the  owners 
of  the  carriage  having  provided  the 
driver  with  a  livery  which  he  left  at  their 
house  at  the  end  of  each  drive,  and  the 
injury  in  question  being  occasioned  by 
his  leaving  the  horses  while  so  deposit- 
ing the  livery  in  their  house,  the  court 
acknowledged  that  if  it  had  appeared 
that  the  coachman  went  into  the  house 
to  leave  his  livery  on  that  occasion 
under  a  special  order  of  the  owners,  or 
under  a  general  order  to  do  so  at  all 
times,  without  leaving  any  one  at  the 
horses'  heads,  a  liability  would  have 
been  incurred.  In  the  course  of  the 
judgment.  Baron  Parke  observed,  "  It 
is  undoubtedly  true  that  there  may  be 
special  circumstances  which  may  render 
the  hirer  of  job-horses  and  servants  re- 
sponsible for  the  neglect  of  a  servant, 
though  not  liable  by  virtue  of  the  gene- 
ral relation  of  master  and  servant.  He 
may  become  so  by  his  own  conduct,  as 
by  taking  the  actual  management  of 
the  horses,  or  ordering  the  servant  to 
drive  in  a  particular  manner,  which 
occasions  the  damage  complained  of,  or 
to  absent  himself  at  one  particular  mo- 
ment, and  the  like."  See  also  Burgess 
V.  Gray,  1  C  B.  578.  — Where  question 
is  not  made  of  the  fact  of  service,  but 
simply  whether  it  is  a  service  of  that 
party  whom  it  is  attempted  to  charge  — 
there  can  be  no  doubt  tliat  the  servant 
cannot  have,  with  respect  to  the  same 
act  of  service,  two  unconnected  masters. 
Two  persons  may  be  joint  masters,  and 
thereby  subject  to  a  joint  liability ;  and 
such  joint  liability  may  be  converted 
into  a  several  one  by  the  election  of  the 
plaintiff  to  sue  one  separately  —  which 
the  law  allows  to  be  done  in  actions  of 
tort ;  but  "  two  persons  cannot  be  made 
separately  liable  at  the  election  of  the 
party  suing,  wiless  in  cases  where  they 
would  be  jointly  liable."     Littledale,  J., 

[96] 


Laugher  r.  Pointer,  5  B.  &  C.  559. 
This  principle  serves  as  a  test  in  that 
difficult  class  of  cases  where  the  negli- 
gent servant  seems  to  be  in  some  re- 
spects in  the  employment  of  one  party, 
and  in  some  respects  in  that  of  another. 
In  such  a  case,  as  soon  as  it  is  ascer- 
tained that,  as  to  the  transaction  in 
question,  he  is  the  servant  of  either  one, 
it  follows  immediately  that  he  cannot 
be  regarded  as  the  servant  of  the  other, 
who  therefore  is  not  liable  for  his  negli- 
gence. Hence  in  the  great  case  of 
Laugher  v.  Pointer,  5  B.  &  C.  547,  it 
was  held  by  Abbott,  C.  J.,  and  Littledale. 
J.,  (whose  opinion  has  since  been  au- 
thoritatively approved,)  in  opposition  to 
the  view  of  Bayley  and  Holroyd,  JJ., 
that  where  the  owner  of  a  carriage  hired 
of  a  stable-keeper  a  pair  of  horses  to 
draw  it  for  a  day,  and  the  owner  of  the 
horses  provided  a  driver,  through  whose 
negligent  driving  an  injury  was  done  to 
a  horse  belonging  to  a  third  person,  the 
owner  of  the  carriage  was  not  liable  to 
be  sued  for  such  injury.  And  the  case 
is  not  affected  though  the  owners  of  the 
carriage  asked  for  that  particular  ser- 
vant among  many.  "  If  the  driver  be 
the  servant  of  the  job-master,  we  do  not 
think  he  ceases  to  be  so  by  reason  of  the 
owner  of  the  carriage  preferring  to  be 
driven  by  that  particular  servant,  where 
there  is  a  choice  amongst  more,  any 
more  than  a  hack  post  boy  ceases  to  be 
the  servant  of  an  innkeeper,  where  a 
traveller  has  a  particular  preference  of 
one  over  the  rest,  on  account  of  his  so- 
briety and  carefulness.  If,  indeed,  the 
defendants  had  insisted  upon  the  horses 
being  driven,  not  by  one  of  the  regular 
servants,  but  by  a  stranger  to  the  job- 
master, appointed  by  themselves,  it 
would  have  made  all  the  difference." 
See  also  Quarman  v.  Burnett,  6  M.  & 
W.  508 ;  Stevens  v.  Armstrong,  2 
Selden,  435. 


CH.  v.]  SERVANTS.  -  92 

mitted  the  wrongdoer  was  in  the  service  of  the  master,  and 
was  then  acting  as  his  servant.  And  this  question  has  been 
held  to  be  a  question  of  fact  for  the  jury,  (c) 

There  seems  to  be  some  extension  of  the  responsibility  of 
the  master,  when  the  work,  in  the  doing  of  which  the  in- 
jurious negligence  occurred,  related  to  real  estate  ;  on  the 
ground  that  the  owner  of  such  property  is  bound  to  be  care- 
ful how  his  use  of  it  or  acts  in  relation  to  it  affect  third  par- 
ties or  the  public  ;  but  the  limits  of  this  extension  are  not 
well  settled.  If  it  have  any  foundation  whatever,  it  must 
rest  upon  the  maxim  sic  utere  tuo  ut  alienum  non  Icedas, 
which  while  it  imposes  a  certain  restriction  upon  the  use 
of  all  property,  may  be  held  perhaps  to  apply  more  espe- 
cially to  lands ;  and  whoever  permits  any  thing  to  be  done 
upon  his  ground,  to  the  positive  damage  of  another,  may 
be  responsible  for  the  nuisance.  This  duty,  however,  can- 
not extend  so  far  as  to  oblige  the  owner  of  land  to  see 
to  it  in  all  cases  that  a  nuisance  is  not  erected  thereon. 
The  measure  of  his  responsibility  must  be  his  reasonable 
power  of  control  ;  and  therefore  it  should  be  sufficient 
for  his  exculpation,  that  he  never,  either  expressly  or  impli- 
edly sanctioned  the  nuisance.  But  if  he  let  his  land  with  a 
nuisance  upon  it,  he  would,  on  the  same  principle,  be  liable 
for  its  continuance,  as  well  as  for  its  erection,  although  he  had 
reserved  to  himself  no  right  to  enter  upon  the  land  and  abate 
the  nuisance.  And  so  if  he  let  land  for  a  particular  use 
which  must  result  in  a  nuisance,  he  should  perhaps  be  liable 
therefor,  [d) 

(c)  Per  Lord  Ahinger,  at  nisi  prius,  Laugher  v.  Pointer,   5  B.  &  C.  560 ; 

Brady  v.  Giles,  1  M.  &  Rob.  494.  Judgment,  Quarman  v.  Burnett,  6  M. 

{d)  Sec  Rich  v.  Basterfield,  4  C.  B.  &  W.  510.    But  the  supposed  distinc- 

783 ;  The  King  v.  Pedley,  1  A.  &  E.  tion  was  quite  disregarded  in  Allen  v. 

822,  3  N.  &  M.  627  ;  Fish  v.  Dodge,  4  Hayward,  7  Q.  B.  960;  and  in  Reedie 

Denio,  311  ;  Carle  I'.  Hall,  2  Mete.  353.  v.  London   and    North- Western   Rail- 

And  possibly  this  doctrine  may  enter  way  Co.,  4  Exch.  244,  it  was  express- 

into  the  decision  in  Burgess  v.  Gray,  ly  overruled.     There  Rolfe,  B.,  giving 

above  referred  to. — It  was  once  believed  the  judgment,  said,  "  On  full  conside- 

that  the  owner  of  fixed  property,  as  dis-  ration,  we  have  come  to  the  conclusion 

tinguished  from  the  owner  of  a  personal  that  there  is  no  such  distinction,  unless 

chattel,  was  liable  in  a  peculiar  manner  perhaps  the  act  complained  of  is  such 

(in  addition  to  the  liability  noticed  in  as  to  amount  to  a  nuisance 

the  text)  for  injuries  resulting  from  the  It  is  not  necessary  to  decide  whether 

negligent  management,  by  any  one  so-  in  any  case  the  owner  of  real  property, 

ever,  of  such  property.    Litiledale,  J.,  such  as  land  or  houses,  may  be  respon- 

VOL.  I.  9  [97] 


93 


THE   LAW   OF   CONTRACTS. 


[book  I. 


Of  the  general  principles  of  the  law  of  contracts  applicable 
to  the  contract  of  service,  we  have  already  considered  some 
under  the  head  of  Agency  ;  and  we  shall  defer  the  considera- 
tion of  others,  and  of  the  questions  which  they  present,  to 
the  fourth  Book  of  this  Part,  which  relates  to  the  subject- 
matter  of  contracts,  and  to  the  chapter  upon  the  topic  of  the 
Hirinsr  of  Personal  Service. 


sible  for  nuisances  occasioned  by  the 
mode  in  which  his  property  is  used  by 
others  not  standing  in  the  relation  of 
servants  to  him,  or  part  of  his  family. 
It  may  be  that  in  some  cases  he  is  so 
responsible.  But  then,  his  liability  must 
be  founded  on  the  principle  that  he  has 
not  taken  due  care  to  prevent  the  doing 
of  acts  which  it  was  his  duty  to  prevent, 
whether  done  by  his  servants  or  others. 
If,  for  instance,  a  person  occupying  a 
house  or  afield  should  permit  another  to 
carry  on  there  a  noxious  trade,  so  as  to 
be  a  nuisance  to  his  neighbors,  it  may  be 
that  he  would  be  responsible,  though  the 
acts  complained  of  were  neither  his  acts 
nor  the  acts  of  his 'servants.  He  would 
have  violated  the  rule  of  law,  '  Sic  iitere 
tuo  ut  alienum   non  Icedas,' "     Bush  v. 


Steinraan,  1  B.  &  Pul.  404  ;  Randleson 
V.  Murray,  8  A.  &  El.  109,  and  other 
cases  of  that  class,  must  be  regarded  as 
substantially  overruled  ;  and  such  Ame- 
rican decisions  as  were  made  before 
the  recent  investigations,  in  deference  to 
those  cases,  will  not,  it  is  presumed,  be 
adhered  to.  De  Forrest  v.  Wright,  2 
Mich.  368.  See,  however,  the  Alayor, 
&c.  of  New  York  v.  Bailey,  2  Denio, 
4.33  ;  and  City  of  Buffalo  v.  Holloway, 
14  Barb.  101 ;  cases  which  it  seems  dif- 
ficult to  reconcile  with  the  current  of 
recent  English  decisions.  See  also 
Lowell  V.  Boston  and  Lowell  R.  R.  Co. 
23  Pick.  24 ;  Gardner  v.  Heartt,  2  Barb. 
S.  C  165;  Stone  v.  Codman,  15  Pick. 
297. 


[98] 


CH.  VI.] 


OF   ATTORNEYS. 


94 


CHAPTER   VI. 


OF    ATTORNEYS. 


Attorneys  are  made  so  by  a  letter  or  power  of  Attor- 
ney (e)  or  they  are  Attorneys  of  Record. 

It  is  a  general  rule,  that  one  acting  under  the  power  of 
attorney,  cannot  execute  for  his  principal  a  sealed  instrument, 
unless  the  power  of  attorney  be  sealed.  (/)  But  as  oral  or 
written  powers  are  equally  parol,  one  by  oral  authority  may 
sign  the  name  of  his  principal  without  a  seal  thereto  ;  and  so 


(e)  "  Few  persons  are  disabled  to  be 
private  attornej'S  to  deliver  seizin  ;  for 
monks,  infants,  femes  covert,  persons  at- 
tainted, outlawed,  excommunicated,  vil- 
leins, aliens,  &c.,  may  be  attorneys.  A 
feme  may  be  an  attorney  to  deliver  seizin 
to  her  husband,  and  the  husband  to  the 
wife."  Co.Litt,  52,  a. — An  infant  cannot 
execute  a  power  coupled  with  an  interest. 
Hearle  v.  Greenbank,  3  Atk.  695.  714. 

(f)  Harrison  v.  Jackson,  7  T.  R.  209  ; 
Elliot  V.  Davis,  2  B.  &  P.  338 ;  Berke- 
ley V.  Hardy,  5  B.  &  C.  355;  Stetson  v. 
Patten,  2  Greenl.  R.  358.— If  a  partner 
seal  for  himself  and  copartner,  in  the 
presence  of  the  copartner,  it  is  sufficient, 
though  his  authority  be  only  by  parol. 
Ball  V.  Dunsterville,  4  T.  II.  sls.— In 
Brutton  v.  Burton,  1  Chitty,  R.  707,  it 
was  held  that  a  warrant  of  attorney  un- 
der seal,  executed  by  one  person  for 
himself  and  partner  in  the  absence  of 
the  latter,  but  with  his  consent,  was  a 
sufficient  authority  for  signing  judgment 
against  both ;  on  the  ground  that  a  war- 
rant of  attorney  to  confess  judgment 
need  not  be  under  seal. — And  Hunter  v. 
Parker,  7  M.  &  W.  322,  contains  another 
application  of  the  same  equitable  and 
reasonable  principle.  Compare  Banor- 
gee  !;.  Hovey,  5  Mass.  R.  11,  24.— An 
instrument  to  which  the  agent  of  a  cor- 
poration has  affixed  his  seal,  may  be 
evidence  of  the  contract  in  an  action  of 
assumpsit  against  the  corporation ;  for 
the  seal  of  the  agent  of  a  corporation, 
unlike  that  of  the  agent  of  a  natural  per- 
son, never  can  be  the  seal  of  his  princi- 
pal. Randall  v.  Van  Vechten,  1 9  Johns. 
60 ;  Damon  v.  Inhabitants  of  Granby, 
2  Pick.  345  ;  Bank  of  Columbia  v.  Pat- 


tersons's  Admr.,  7  Cranch,  299. — There 
is  a  class  of  Partnership  cases,  in  which 
it  has  been  held  that  any  express  ratifi- 
cation, though  parol,  by  a  partner  of  a 
contract  under  seal  entered  into  for  the 
firm  by  his  copartner,  makes  the  instru- 
ment the  deed  of  the  firm.  Darst  v. 
Roth,  4  Wash.  C.  C.  R.471  ;  Mackay  v. 
Bloodgood,  9  Johns.  285.— The  dicta 
of  several  judges  have  extended  this  ex- 
ception to  include  an  original  parol  au- 
thority. See  Skinner  v.  Dayton,  19 
Johns.  513,  where  the  decision  seems  to 
be  too  broadly  stated  in  the  reporter's 
note.  Some  decisions  also  go  to  this 
extent,  as  Gram  i'.  Scton,  1  Hall,  (N.  Y.) 
262.  —  In  Cady  v.  Shepherd,  11  Pick. 
400,  the  cases  are  reviewed,  and  among 
others  Brutton  v.  Burton,  1  Chitty,  R. 
707,  (see  supra,)  the  decision  in  which  is 
stated  nakedly,  without  the  addition  of 
the  reason  by  which  the  Court  of  Queen's 
Bench  appear  to  have  been  governed, 
and  which  goes  to  reconcile  it  with  the 
authorities.  And  see  Hunter  v.  Parker, 
7  M.  &  W.  331,  332, 344 ;  Price  v.  Alex- 
ander, 2  Greene,  (Iowa,)  427.  Cady  r. 
Shepherd,  however,  must  be  taken  to 
decide  the  law  for  Massachusetts  to  be, 
that  a  partner  may  bind  his  copartner 
by  a  contract  under  seal,  made  in  the 
name  and  for  the  use  of  the  firm,  in  the 
course  of  the  partnership  business,  pro- 
vided the  copartner  assents  to  the  con- 
tract previously  to  its  execution,  or 
afterwards  ratifies  and  adopts  it ;  and 
this  assent  or  adoption  may  be  by  parol. 
Whether  the  doctrine  of  these  cases  is 
to  be  extended  to  other  than  partnership 
cases,  is  open  to  doubt :  the  probability 
is  that  it  will  not.     It  is  worthy  of  no- 

[99] 


95*  THE   LAW   OP   CONTRACTS.  [BOOK   I. 

he  may  be  *authorized  orally  to  bind  his  principal  by  written 
contracts,  where  the  statute  of  frauds  requires  a  writing  signed 
by  the  parties  sought  to  be  charged,  as  the  foundation  of  an 
action,  (g) 

The  effect  of  a  written  authority  in  limiting  the  power  of  an 
attorney  precisely  within  what  is  written,  may  be  illustrated 
by  the  execution  of  a  deed  by  one  person  for  another.  If  a 
grantor  requests  a  person  in  his  presence  to  sign  for  him  his 
(the  grantor's)  name  to  a  deed,  and  the  person  thus  requested 
writes  the  name  of  the  grantor  without  writing  his  own,  or 
adding  any  words  to  indicate  that  the  grantor  acted  by  attor- 
ney, this  would  seem  to  be  nevertheless  the  signature  of  tlie 
grantor,  and  the  deed  would  be  valid.  But  if  the  grantor  has 
given  to  A.  B.  a  power  of  attorney  in  the  ordinary  form,  au- 
thorizing him  to  execute  a  deed  for  him  as  his  attorney,  and 
this  person  writes  the  name  of  the  grantor  in  his  absence, 
without  saying  "  by  A.  B.  his  attorney,"  or  writing  his  own 
name ;  this  would  seem  to  be  not  a  sufficient  execution  of  the 
deed.  Because  A.  B.  had  no  other  power  to  act  for  the 
grantor  than  that  which  the  letter  of  attorney  gave  him  ;  and 
that  did  not  give  him  any  other  power  than  to.  act  as  the 
grantor's  attorney ;  that  is,  to  sign  the  deed  himself,  declaring 
that  the  grantor  signed  it  by  him.  In  the  first  case,  evidence 
is  admissible  to  show  the  authority  under  which  the  signa- 

tice,  in  the  absence  of  clear  and  consist-  the  doctrine  of  estoppel,  a  principal,  by 

ent  adjudication,  that  parol  ratification,  admitting  that  to  be  his  deed  which  was 

though   frequently   confounded  in   the  executed  by  his  agent,  might  be  held  to 

cases  witli  an   oriijinal  parol  authority,  have  disabled  himself  to  say  that  the 

stands  on  quite  a  different  footing,  and  agent  was   not  duly  authorized.     As 

may  be  defended  by  reasons  which  do  yet,  however,  the  law  must  certainly  be 

not  apply  to  the  other.    It  is  delivery  taken  to  be,  that  even  a  parol  ratification 

that  completes  the  deed,  and  a  subse-  does  not  make  an  instrument  under  seal, 

quent  parol  assent,  or  contemporaneous  executed  by  an  agent  who  had  not  an 

parol  assent,  may  amount  to  delivery,  authority  under  seal,  the  deed  of  the 

though  a  previous  assent,  by  the  nature  principal.     Where,  however,  a  partner 

of  things,  as  well  as  by  common  law,  makes  a  mortgage  of  personal  property 

never  can.     The  deed  must  exist  before  in  the  name  of  the  firm  and  seals  it,  the 

it  can  be  delivered  ;  and  it  may  be  deli-  seal  being  unnecessary,  the  mortgage 

vered  at  any  time  after  it  once   does  binds  the  firm.  Milton  v.  Mosher,  7  Mete, 

exist  in  a  completed  form.     See  Byers  244  ;  see  also  ante,  page  47,  note  (ww). 
,    McClanahan    6   G.   &  Johns    250 ;  ^.  ^ 

^J'tk?'.^'     -7^%^^^^^^       r.  Trecothick,   9  Ves.  234;    Clinan  r. 

^K^^^-^1^'  'TL         cl%Sh     \o  Cooke,  1  Sch:  &  Lef.22;  McComb  v. 

5  Bmt'.   368;   Blood  v.   Goodrich,   12  -rir  ■  ul    .   t  u        r^i.  nzk     r^    x. 

J  13111^.   ouu,  Tf  ^   ^  .  T'^o  Wnght,  4  Johns.   Ch.  659  ;  Graham  v. 

Wend.  525,  9  \\  end.  68 ;  Bragg  v.  Fes-  ^.%'  .  Bi^^  -ni  n  fi07 

senden,  11  111.  544.     And  besides,  on  -^^'^^^o"'  "^  ■^'°&-  ^-  ^-  ^^'■ 
[100] 


CH.   VI.] 


OF  ATTORNEYS. 


*96 


ture  was  made ;  and  when  this  exhibits  the  grantor  as  pre- 
sent, and  as  authorizing  the  signature  made  in  that  way,  then 
*it  becomes  the  signature  of  the  grantor  made  by  another  hand 
than  his  own.  But  in  executing  a  deed  by  attorney,  the 
power  being  delegated  to  the  attorney  is  with  him,  and  the 
deed  takes  effect  from  his  act ;  and  therefore  the  instrument 
which  gives  the  power  is  to  be  strictly  examined  and  con- 
strued, (gg-) 


(gcj)  This  point,  upon  which  there 
seems  to  be  no  express  decision,  arose 
in  the  recent  case  of  Wood  v.  Good- 
ridge,  6  Gushing,  117.  This  was  the 
case  of  a  mortgage  deed  and  note  made 
under  a  power  of  attorney  under  seal, 
by  simply  signing  the  name  of  the  prin- 
cipal opposite  to  a  seal,  in  the  case  of 
the  deed,  and  in  the  case  of  the  note,  by 
simply  writing  the  principal's  name  at 
the  foot.  It  was  not  necessary  to  decide 
the  point,  the  court  being  of  opinion  that 
the  power,  though  very  general  in  its 
terms,  did  not  confer  authority  to  mort- 
gage, nor  to  borrow  money  and  bind  the 
principal  by  a  promissory  note.  But 
the  question  of  the  manner  of  execution 
was  much  considered,  and  the  court,  per 
Fletcher,  J.,  signified  an  inclination  to 
hold,  that  where  an  attorney  signs  the 
name  of  his  principal  to  an  instrument 
M"hich  contains  nothing  to  indicate  that 
it  is  executed  by  attorney,  and  without 
adding  his  own  signature  as  such,  it  is 
not  a  valid  execution.  —  A  deed  was 
signed  in  the  presence  and  by  the  direc- 
tion of  P.  G.,  (and  in  the  presence  of  an 
attesting  witness,)  thus:  "P.  G.  by  M. 
G.  G."  It  was  objected  that  M.  G.  G., 
signing  in  that  manner  for  the  principal, 
should  have  had  a  power  under  seal; 
but  the  deed  was  held  valid.  Gardner 
«.  Gardner,  5  Cush.  483.  In  delivering 
the  judgment  in  this  case,  Shaw,  C.  J., 
said,  "  The  name  being  written  by  ano- 
ther hand,  in  the  presence  of  the  grantor, 
and  at  her  request,  is  her  act.  The  dis- 
posing capacity,  the  act  of  mind,  which 
are  the  essential  and  efficient  ingredients 
of  the  deed,  are  hers ;  and  she  merely 
uses  the  hand  of  another,  through  inca- 
pacity or  weakness,  instead  of  her  own, 
to  do  the  physical  act  of  making  a  writ- 
ten sign.  Whereas,  in  executing  a 
deed  by  attorney,  the  disposing  power, 
though  delegated,  is  with  the  attorney, 
and  the  deed  takes  effect  from  his  act  ■■, 
9* 


and  therefore  the  power  is  to  be  strictly 
examined  and  construed."  —  Perhaps  it 
will  still  be  regarded  as  an  open  ques- 
tion whether  the  simple  signing  of  the 
principal's  name,  without  evidence  on 
the  face  of  the  instrument  that  the  execu- 
tion is  by  an  agent,  may  not  be  sufficient. 
From  a  passage  in  Dixon  on  Title 
Deeds,  vol.  ii.  p.  533,  it  may  be  inferred 
that  the  author's  view  is  similar  to  that 
now  taken  by  the  Supreme  Court  of 
Massachusetts.  On  the  other  hand  the 
books  contain  numerous  intimations 
that  it  has  not  generally  been  supposed, 
heretofore,  that  any  other  form  is  neces- 
sary to  the  valid  execution  of  a  deed  by 
attorney  than  is  requisite  when  the  prin- 
cipal makes  a  deed  in  his  proper  person. 
See  1  Prest.  Abstr.  2d  ed.  293,  294; 
Smith,  Mer.  Law,  B.  I.  c.  5,  sec.  4  ; 
Wilks  V.  Back,  2  East,  142,  145  ;  Elliot 
V.  Davis,  2  B.  &  P.  338 ;  Bac.  Ab.  Leases, 
J.  sec.  10.  It  seems  the  better  opinion 
that,  even  since  the  Statute  of  Frauds, 
a  sirjning  is  not  essential  to  a  deed. 
Aveline  v.  Whisson,  4  M.  &  Gr.  801  ; 
Cherry  v.  Heming,  4  Exch.  631  ;  Shepp. 
Touch,  by  Preston,  56,  note.  If  this  be 
so,  it  may  be  considered  going  very  far 
to  hold  that  the  addition  of  the  name  of 
the  principal,  by  the  hand  of  an  author- 
ized attorney,  invalidates  an  instrument 
which  would  have  been  perfectly  good 
without  any  signature  at  all.  In  some 
States,  indeed,  the  Statutes  of  Convey- 
ance modify  the  common  law  in  this 
particular,  and  require  signing,  as  well 
as  the  affixing  of  a  seal.  With  respect 
to  instruments  not  under  seal,  the  opi- 
nion seems  equally  to  have  prevailed 
that  an  authority  to  sign  for  a  principal 
is  well  executed  by  the  mere  subscrip- 
tion of  the  principal's  name.  Chitty  on 
Bills.  9th  ed.  33;  Byles  on  Bills,  6th 
cd.  26.  —  An  auctioneer  or  auctioneer's 
clerk  performs  his  implied  authority  by 
simply  writing  the  purchaser's  name  in 

[101] 


97 


THE    LAW    OF    CONTRACTS. 


[book  I. 


An  attorney  of  record,  more  commonly  called  an  attorney 
at  law,  is  one  who  has  been  duly  admitted  by  competent 
authority  to  practise  in  the  courts.  Such  an  attorney  need 
not  prove  his  authority  to  appear  for  any  party  in  court,  and 
act  for  him  there,  unless  his  authority  be  denied,  and  some 
evidence  be  offered  tending  to  show  that  he  has  no  such  au- 
thority, (h)  But  a  person  who  is  not  an  attorney  at  law, 
and  who  offers  to  appear  for  another  in  court,  by  special  au- 
thority, must  prove  such  authority  if  requested,  (i) 

An  attorney  who  places  his  client's  money  in  the  hands  of 
his  own  banker,  to  his  own  private  account,  though  he  does 
this  bond  Jide,  and  has  money  of  his  own  in  the  hands  of 
the  same  banker,  is  liable  for  the  loss  thereof  by  the  bank- 
ruptcy of  the  banker,  (j)  But  it  seems  that  he  is  not  liable 
if  he  deposits  the  money  as  the  property  of  the  owner,  and 


the  memorandum  of  sale.  Bird  v.  Boul- 
ter, 4  B.  &  Ad.  443.  This  indeed  is  of 
no  great  M'eight  in  itself,  since  that 
case  might  be  A'iewed  as  ftUling  within 
the  class  expressly  distinguished  by  the 
Supreme  Court  of  Massachusetts,  name- 
ly, where  the  signature  is  made  in  the 
presence  of  the  principal,  and  by  his  im- 
mediate direction  :  yet  there  is  a  case  of 
White  V.  Proctor,  4  Taunt.  209,  where 
the  objection  was  expressly  taken  that 
the  tmme  of  the  auctioneer  ought  to  ap- 
pear as  well  as  that  of  the  purchaser. 
There  Best,  Sergeant,  referring  to  Em- 
merson  v.  Heelis,  2  Taunt.  38,  said  that 
in  tliat  case  the  auctioneer  wrote  his 
own  name  in  the  heading  of  the  paper, 
and  that  the  decision  was  given  on  that 
ground.  But  Mansfield,  C.  J.,  replied, 
'•  In  that  case  there  was  no  argument 
upon  the  circumstance  that  the  auc- 
tioneer had  signed,  nor  was  the  case  at 
all  decided  upon  tliat  ground ;  his  say- 
ing '  sold  bjj  John  Wright,'  did  not  make 
him  agent  for  the  buyer;  the  only  ques- 
tion was,  whether  his  signing  the  purchas- 
er s  name  icas  done  hy  him  as  agent  for 
the  purchaser.'''  The  power  of  one  part- 
ner to  bind  the  firm  by  a  note  or  bill  has 
been  referred  to  principles  of  agency: 
and  it  is  well  established  that  the  signa- 
ture of  the  firm  name  without  more  is  a 
complete  execution.  See  Norton  r.  Sey- 
mour, 3  C.  B.  792;  Kirk  i-.  Blurton,"9 
M.  &  W.  284.  — Watkins  v.  Vince,  2 
Stark.  368,  though  meagrely  reported, 
^  [102, 


seems  to  be  a  case  where  Lord  Ellenbo- 
rough  entertained  no  doubt  that  the 
signing  of  the  principal's  name,  by  an 
agent  having  authority  to  contract  in 
his  behalf,  was  a  sufficient  signature. 
And  see  Helmsley  v.  Loader,  2  Camp. 
450,  which  is  somewhat  more  explicit. 

{h)  Osborn  v.  U.  S.  Bank,  9  Wheat. 
738,  830;  where  this  rule  of  evidence 
was  applied  in  the  case  of  an  attorney 
assuming  to  act  in  behalf  of  a  corpo- 
ration. See  also  Jackson  v.  Stewart,  C 
Johns.  34:  Denton  v.  Koyes,  6  Johns. 
296 :  Henck  v.  Todhunter,  7  H.  &  Johns. 
275  ;  Huston,  J.,  Lynch  v.  Common- 
wealth, 16  S.  &R.  369;  Woodbury,  J., 
Eastman  v.  Coos  Bank,  1  N.  Hamp,  23. 
—  The  authority  from  the  client  need 
not  in  general  be  in  writing ;  yet  an  oral 
authority  to  appear  in  a  cause  is  not 
sufficient  to  enable  the  attorney  to  re- 
lease the  interest  of  a  witness.  Murray 
V.  House,  11  Johns.  464.  As  to  the  evi- 
dence required  to  support  a  claim  for 
services  rendered  by  any  attorney  to  his 
client,  see  Burghart  v.  Gardner,  3  Barb. 
Sup.  Ct.  64;  Wilson  v.  Wilson,  1  J.  & 
Walk.  457.  —  Solicitor  is  the  legal  desig- 
nation of  one  who  fills  the  place  in  a 
court  of  equity  corresponding  to  that  of 
an  attorney  in  a  court  of  laM'.  Maugh- 
am, c.  1,  §  1. 

((■)  Marshall,  C.  J.,  Osborn  v.  U.  S. 
Bank,  9  Wheat.  829. 

(j)  Robinson  v.  Ward,  R.  &  M.  274, 
2  C.  &P.  59. 


CH.   VI.] 


OF   ATTORNEYS. 


^98 


opens  a  special  account  specifying  whose  it  is.  (k)  His  im- 
*  plied  duty  to  use  reasonable  skill,  care,  &c.,  is  the  same  as 
that  of  other  persons  to  whose  care  and  skill  any  thing  is 
intrusted;  which  will  be  spoken  of  hereafter.  (/)  He  is  not 
responsible  for  mistake  in  a  doubtful  point  of  law,  [m)  or  of 
practice,  (w)  nor  for  the  fault  of  counsel  retained  by  him.  (o) 
He  is  liable  for  disclosing  privileged  communications,  (p)  If 
discharged  by  one  party  he  may  act  for  an  opposite  party, 
provided  he  makes  no  improper  use  of  knowledge  obtained 
by  him.  (q)  But  it  seems  that  he  may  not  act  for  an  oppo- 
site party  if  discharged  by  his  first  client  for  misconduct,  (r) 
An  attorney  cannot  recover  his  bill  against  his  client,  if  his 
client  has  received  no  benefit  whatever  from  his  services  by 
reason  of  his  want  of  care  and  skill,  {s)  But  if  the  client  has 
received  any  benefit,  he  must  in  England   pay  the  bill,  and 


(k)  Abbott,  C.  J.,  Eobinson  v.  Ward, 
2  C.  &  P.  60. 

(1)  Pitt  V.  Yalden,  4  Burr.  2060 ;  Bai- 
kie  V.  Chandless,  3  Camp.  17,  19;  Shil- 
cock  V.  Passman,  7  C.  &  P.  289 ;  Godc- 
froy  V.  Dalton,  6  Bing.  460 ;  Meggs  v. 
Binns,  2  Bing.  N.  C.  625  ;  Lynch  v. 
Commonwealth,  16  S.  &  Rawle,  368; 
Dearborn  v.  Dearborn,  15  Mass.  316; 
Varnum  v.  Martin,  15  Pick.  440;  Wil- 
son V.  Coffin,  2  Cush.  316;  Cooper  f. 
Stevenson,  12  E.  L.  &E.  403.  And  see 
ante  p.  *73,  note. 

(m)  Kemp  u.  Burt,  4  B.  &  Ad.  424; 
1  N.  &  Man.  262  S.  C. ;  Elkington  v. 
Holland,  9  M.  &  W.  659 ;  Pitt  v.  Yal- 
den, 4  Burr.  2060. 

(«)  Laidler  v.  Elliott,  3  B.  &  C.  738. 

(o)  Lowry  v.  Guilford,  5  C  &  P. 
234.  —  Yet  an  attorney  cannot,  by  con- 
sulting his  counsel,  shift  from  himself 
the  responsibility  of  a  matter  presumed 
by  the  law  to  lie  within  his  own  know- 
ledge. Tindal,  C.  J. ,  Godefroy  v.  Dalton, 
4  M.  &  P.  149  ;  6  Bing.  460,  S.  C 

(/>)  And  his  liability  is  not  removed 
by  the  fact  that  he  was  previous  re- 
tained for  the  party  to  whom  the  disclo- 
sures were  made,  and  that  his  employer 
knew  of  that  former  i-etainer.  Taylor 
V.  Blacklow,  3  Bing.  N.  C.  235. 

(q)  Bricheno  v.  Thorp,  1  Jac.  300. — 
It  is  not  clear,  however,  if  it  be  distinct- 
ly shown  that  confidential  disclosures 
have  been  made  to  the  attorney  or  soli- 
citor, which  if  communicated  to  the  other 


party  must  be  directly  prejudicial  to  the 
former  client,  that  a  court  of  equity 
-would  not  forbid  the  acceptance  of  the 
second  retainer,  although  the  attorney 
■was  dismissed  for  no  misconduct.  Lord 
Eldon,  C,  Bricheno  v.  Thorp,  1  Jac. 
303,  304;  Cholmondelev  v.  Clinton,  19 
Ves.  261,  275.  In  the  latter  case  Lord 
Eldon  said,  "  My  opinion  is  that  he  [the 
attorney]  ought  not,  if  he  knows  any 
thing  that  may  be  prejudicial  to  the  for- 
mer client,  to  accept  the  new  brief, 
though  that  client  refused  to  retain  him." 
—  In  Johnson  v.  Marriott,  4  Tyr.  78, 
where  the  court  refused  to  restrain  an 
attorney,  who  (without  his  misconduct) 
had  been  dismissed  from  the  employ- 
ment of  the  plaintiffs,  from  acting  for 
the  defendant,  the  judges  rested  their 
decision  on  the  ground  that  there  was 
no  affidavit  by  the  plaintiffs  that  the  at- 
torney, while  in  their  employment,  had 
obtained  a  confidential  knowledge  of 
particular  facts,  which  it  would  be  pre- 
judicial to  their  case  to  communicate  to 
the  defendant. 

(?•)  Lord  Eldon,  Cholmondeley  v. 
Clinton,  19  Ves.  261 ;  Gurney,  B.,  John- 
son V.  IMarriott,  4  Tyr.  78. 

(s)  Huntley  v.  Bulwcr,  6  Bing.  N.  C. 
Ill;  Bracey  v.  Carter,  12  Ad.  &  El. 
373  ;  Hill  v.  Featherstonhautrh,  7  Bing. 
569;  Hopping  v.  Quin,  12  Wend.  517; 
See  Runyan  v.  Nichols,  11  Johns. 
547. 

[103] 


99' 


THE   LAW   OF   CONTRACTS. 


[book  I. 


may  then  have  an  action  for  damages,  (t)  It  has  been  there 
held  however  that  a  jury  may  discriminate  between  the  seve- 
ral items  in  an  account  and  reject  those  for  work  entirely 
useless  ;  (tt)  and  it  may  be  doubted  whether  in  America  the 
client  might  not  reduce  the  attorney's  claim  by  show^ing  the 
little  value  of  the  benefit  received,  as  in  actions  for  other 
services. 

*  An  attorney  is  in  general  liable  personally  on  an  agree- 
ment made  by  him  in  his  own  name,  although  only  profes- 
sionally concerned  in  the  matter,  (w) 

There  are  many  English  statutes  relating  to  the  powers, 
duties,  and  responsibilities  of  attorneys,  which  have  no  force 
in  this  country.  Most  of  our  courts  have  rules  of  practice 
bearing  somewhat  on  this  subject,  (v) 


(t)  Templer  r.  McLachlan,  2  B.  &  P., 
(N.  R.)  136. 

(tt)  Shaw  V.  Arden,  9  Bing.  289. 

(u)  Hall  V.  Ashurt,  1  C.  &  Mee.  714  ; 
Ireson  v.  Conington,  1  B.&  Cress.  160  ; 
Burrell  v.  Jones,  3  B.  &  Aid.  47  ;  Scrace 
V.  Whittington.  2  B.  &  Cress.  11  ;  Wat- 
son V.  Murrel,  1  C.  &  P.  307.— In  New 
Hampshire,  it  is  held  that  where  a  plain- 
tiff resides  within  that  State,  and  em- 
ploys an  attorney  in  his  behalf  to  com- 
mence an  action  for  him,  such  attorney 
is  authorized  by  the  employment  to 
place  the  name  of  the  plaintiff  upon  the 
writ  as  indorser,  and  to  bind  him  as 
such ;  and  in  such  case,  if  the  indorse- 
ment be  thus :  "  A.,  plaintiff,  by  his  at- 
torney B,'"  the  plaintiff'  is  regarded  as 
the  indorser  and  the  attorney  is  not 
personally  bound ;  but  if  the  plaintiff 
reside  out  of  the  State,  the  attorney 


having  no  authority  to  bind  the  plaintiff, 
is  himself  personally  bound  by  such 
indorsement,  and  the  writ  accordingly 
is  properly  and  sufficiently  indorsed. 
Pettingill  y.  McGregor,  12  N.  H.  179; 
Woods  V.  Blodgett,  15  N.  li.  569. 

(v)  The  nature  and  scope  of  the  au- 
thority of  attorneys  at  law,  in  this  coun- 
try are  considered  in  Holker  v.  Parker, 
7  Cranch,  436 ;  Erwin  v.  Blake,  8  Pet.  18 ; 
Union  Bank  of  Georgetown  v.  Geary, 
5  Pet.  99  ;  United  States  v.  Curry,  6 
How.  106;  United  States  v.  Yates,  6 
How.  605  ;  Smith's  Adm'r  v.  Lam- 
berts, 7  Grattan,  138  ;  Lewis  v.  Gamage, 
1  Pick.  347  ;  Jenney  v.  Lesdernier,  20 
Maine,  183;  Jewitt  v.  Wadleigh,  32 
Maine,  110;  Slackhouse  v.  O'Hara,  14 
Pcnn.  88;  Walker  v.  Scott,  8  Eng. 
(Ark.)  644. 


[104] 


CH.  VII.]  TRUSTEES.  100 


CHAPTER  VII. 

TRUSTEES. 

Sect.  I. —  The  Origin  of  Trusts. 

It  can  hardly  be  denied  that  Trusts,  in  the  English  law, 
had  a  fraudulent  origin.  It  was  sought,  by  the  intervention 
of  a  trustee,  to  evade  the  feudal  law  of  tenures,  and  the  pro- 
hibitions of  the  statutes  of  Mortmain,  and  to  place  pro- 
perty where  a  creditor  could  not  reach  it.  The  practice  be- 
came common  ;  and  as  such  trustee  was  not  accountable  at 
common  law,  the  Chancellor,  in  the  reign  of  Richard  IL, 
applied  the  writ  of  subpoena  to  call  him  before  the  Court  of 
Chancery,  where  he  might  be  compelled  to  do  what  equity 
and  justice  required.  "A  trust,"  said  Sir  Robert  Atkins,  {lu) 
"  had  for  its  parents  fraud  and  fear,  and  for  its  nurse  a  court 
of  conscience."  The  obvious  utility  of  trusts  has  made  them 
very  common :  but  almost  the  whole  jurisdiction  over  trus- 
tees has  always  remained  in  the  Courts  of  Equity,  {x)  So 
far  as  they  come  under  the  supervision  and  control  of  the 
common  law,  trustees  are  treated  in  most  respects  as  agents, 
and  most  of  the  principles  and  rules  of  law  in  relation  to 
them  have  been  anticipated  and  stated  under  that  head. 

(w)  Attorney-General  v.  Sands,  Har-  ad  i-em,  but  only  a  confidence  and  trust, 

dres,  405  ;  arguendo,  "  A  trust  is  altoge-  for  which  he  hath  no  remedy  by  the 

ther  the  same  that  an  use  was  before  27  common  law,  but  his  remedy  was  only 

Hen.  8,  and  they  have  the  same  parents,  by  subpcena  in  chancery.    If  the  feoffees 

fraud  and  fear ;  and  the  same  nurse,  a  would  not  perform   the   order  of  the 

court  of  conscience.    By  statute  law,  an  chancery,    then   their  persons   for  the 

use,  trust,  or  confidence,  are  all  one  and  breach  of  the  confidence  were  to  be  im- 

the  same  thing.    What  an  use  is,  vide  prisoned   till   they  did  perform  it."  — 

PI.  Com.  352,   and   1  Rep.  in  Chud-  Toorde  v.  Hoskins,  2  Buls.  337.    Per 

leigh's  case  ;  and  they  are  collateral  to  C'oJce,  C.  J.,  "  If  cestui  que  use  desires  the 

the  land ;  a  cestui  que  trust  has  neither  feoffees  to  make  the  estate  over,  and 

jus  ad  rem  nor  in  re:'  they  so  to  do  refuse,  for  this  refusal  an 

(a;)   Co.   Litt.   272,  b ;    Chudleigh's  action  upon  the  case  lieth  not,  because 

Case,  1  Coke,  121.    '-So  that,  he  who  for  this  he  hath  his  proper  remedy  by  a 

hath  an  use  hath  not  Jus,  neque  in  re,  neque  subpoena  in  the  chancery." 

[105] 


101  THE  LAW  OF  CONTRACTS.  [bOOK  I. 


SECTION  n. 

CLASSIFICATION   OF  TRUSTS. 

Trusts  are  simple  when  property  is  vested  in  one  person 
upon  trust  for  another,  without  any  particular  directions  or 
provisions  ;  and  then  the  nature  and  operation  of  the  trust 
are  determined  by  legal  construction.  They  are  special, 
where  the  purposes  of  the  trust,  and  the  manner  in  which 
they  are  to  be  accomplished  are  especially  pointed  out  and 
prescribed;  and  then  these  express  provisions  must  be  the 
rule  and  measure  of  the  trustee's  rights  and  duties. 

They  may  be  merely  ministerial,  as  where  one  receives 
money  only  to  pay  the  debt  of  the  giver,  or  an  estate  is 
vested  in  him  merely  that  he  may  convey  it  to  another. 
Or  they  may  be  discretionary,  where  much  is  left  to  the 
prudence  and  judgment  of  the  trustee.  But  in  all  cases, 
the  trustee,  by  accepting  the  trust,  engages  that  he  possesses, 
and  that  he  will  exert  that  degree  of  knowledge,  intelligence 
and  care,  reasonably  requisite  for  the  proper  discharge  of  the 
duties  which  he  undertakes  to  perform. 

A  trust,  ivith  a  power  annexed,  is  distinguished  from  a 
mixture  of  trust  and  poiver.  [y)  In  the  former  case,  as  where 
lands  are  vested  in  trust,  with  a  power  in  the  trustees  to 
make  leases  of  a  certain  kind,  or  length,  the  trustee  may 
or  may  not  exercise  this  power,  and  will  not  be  compelled 
to  do  so,  unless  his  neglect  to  exercise  it  be  fraudulent  and 
wrongful.  But  in  the  latter  case,  as  where  lands  or  funds 
are  vested  in  trust  for  certain  persons,  to  be  "distributed 
among  them  according  to  the  best  judgment  of  the  trus- 
tee," here  the  distribution  is  of  the  essence  of  the  trust,  and 
must  be  made;  although  in  the  manner  of  distribution,  the 
courts  will  not  interfere,  unless  to  prevent  fraud  or  other 
wrong. 

Trustees  are  also  private  or  public.  The  former  hold  pro- 
perty for  the  benefit  of  an  individual  (the  cestui  que  trust)  or 

{y)  Gower  v.  Mainwaring,  2  Ves.  Sen.  89  ;  Cole  v.  Wade,  16  Ves.  Jr.  43. 
[106] 


CH.  VII.]  TRUSTEES.  *102 

more  than  one,  but  who  are  distinctly  pointed  out,  personally, 
or  by  other  sufficient  description.  Public  trustees  are  those 
*who  hold  for  the  benefit  of  the  whole  public,  or  for  a  certain 
large  part  of  the  public,  as  a  town  or  a  parish ;  and  they  are 
usually  treated  as  official  persons,  with  official  rights  and 
responsibilities. 


SECTION  III. 
PRIVATE   TRUSTEES. 

A  private  trustee  is,  as  we  have  seen,  one  to  whom  pro- 
perty, either  real  or  personal,  has  been  given  to  be  held  in 
trust  for  the  benefit  of  others ;  and  the  most  common  in- 
stances are  trustees  of  property  for  the  benefit  of  children, 
or  other  devisees  or  legatees,  or  for  married  women,  or 
for  the  payment  of  the  debts  of  an  insolvent,  or  for  the 
management  and  winding  up  of  some  business  and  the  like. 

The  legal  estate  is  in  the  trustee,  and  the  equitable  estate 
is  in  the  cestui  que  trust ;  but  as  the  trustee  holds  the  estate, 
although  only  with  the  power  and  for  the  purpose  of  manag- 
ing it,  he  is  bound  personally  by  the  contracts  that  he  makes 
as  trustee,  although  designating  himself  as  such ;  and  no- 
thing will  discharge  him  but  an  express  provision,  show- 
ing clearly  that  both  parties  agreed  to  act  upon  the  respon- 
sibility of  the  funds  alone,  or  of  some  other  responsibility, 
exclusive  of  that  of  the  trustee ;  or  some  other  circum- 
stance clearly  indicating  another  party  who  is  bound  by  the 
contract,  and  upon  whose  credit  it  is  made.  The  mere 
use  by  the  promisor  of  the  name  of  Trustee,  or  of  any 
other  name  of  office  or  employment,  will  not  discharge  him. 
Some  one  must  be  bound  by  the  contract,  and  if  he  does 
not  bind  some  other,  he  binds  himself,  (c),  and  the  official 

[z)  Thomas  v.  Bishop,  Cases  Temp.  ers.  as  executors,  jointly  and  severally  pro- 

Hardwicke,  9,  2  Str.  955.     In  this  case  mise  to  pay  on  demand  with  interest, 

a  cashier  was  held  liable  on  a  bill  ac-  renders  them  personally  liable.  —  Eaton 

cepted  by  him  generally,  though  it  was  v.  Bell,  5  B.  &  Aid.  34.'  Commissioners 

drawn    on    account    of    the   company,  of  a  private  inclosure  act,  are  personally 

Childs  V.  Monins,  2  Bro.  &  Bing.  460.  liable  on  drafts  drawn  on  bankers,  re- 

A  promissory  note,  by  which  the  mak-  questing  them  to  pay  the  sums  therein 

[107] 


103» 


THE   LAW   OF   CONTRACTS. 


[book 


name  is  then  regarded  only  as  describing  and  designating 
him. 

*A  trustee  is  held  not  only  to  careful  management  of  the 
trust  property,  so  that  it  shall  not  be  wasted  or  diminished, 
but  he  is  bound  to  secure  its  reasonable  productiveness  and 
increase.  If  it  lie  idle  in  his  hands,  without  cause,  he  will 
be  charged  interest,  [a)  In  some  instances  he  is  charged 
compound  interest  ;  but  there  is  some  discrepancy  in  the 
cases  in  which  the  question  of  compounding  interest  occurs. 
On  the  whole,  we  think  the  rule  may  be  stated  thus :  Inte- 
rest will  be  compounded,  or  computed  with  annual  rests, 
where  the  trustee  is  guilty  of  gross  delinquency,  or  mingles 
the  trust  property  with  his  own  for  his  own  benefit,  or  other- 
wise so  uses  the  trust  funds  as  to  justify  the  belief  that  he 
has  actually  earned  interest  upon  the  interest  ;  and  the 
reason  for  charging  compound  interest  is  much  stronger, 
when  the  trustee  refuses  to  exhibit  the  accounts,  which 
would  show,  precisely,  what  loss  or  advantage  he  has  de- 
rived from  the  trust  funds,  (b)     But  he  will  not  be  charged 


mentioned  on  account  of  the  public 
drainage,  and  to  place  the  same  to  their 
account,  as  commissioners.  —  Eew  v. 
Pettet,  1  A.  &  E.  196,  3  N.  &  M. 
456.  The  makers  of  a  note  who  sign 
it  "  as  church-wardens  and  overseers," 
are  personally  liable,  although  the  loan 
was  for  the  use  of  the  parish.  —  Ex 
parte  Buckley,  14  M.  &  W.  469.  It 
was  held  in  this  case  that  there  was 
no  separate  right  of  action  against  "  E. 
M.,"  a  partner  who  signed  a  promissory 
note  for  himself  and  his  copartner  thus, 
"For  J.  C,  K.  M.,  J.  P.,  and  T.  S.," 
"  K.  M." 

(a)  Green  v.  Winter,  1  Johns.  Ch. 
26  ;  Manning  v.  Manning,  1  Johns.  Ch. 
527;  Schieftelin  v.  Stewart,  1  Johns. 
Ch.  620. 

(6)  He  will  be  charged  with  com- 
pound interest  if  he  is  grossly  delin- 
quent in  the  investment  of  the  money, 
or  employs  it  in  trade,  refusing  to  ac- 
count for  the  profits.  Jones  v.  Foxall, 
13  E.  L.  &  E.  140  ;  Schieffelin  v.  Stew- 
art, 1  Johns.  Ch.  620  ;  Evertson  r. 
Tappen,  5  Johns.  Ch.  497  ;  Luken's 
Appeal,  7  W.  &  S.  48  ;  Boynton  v. 
Dyer,  18  Pick.  1 ;  Turney  v.  Williams, 
7  Yerg.  172  ;  Wright  v.  "Wright,  2 
[108] 


McCord,  Ch.  200  ;  Bryant  v.  Craig,  12 
Ala.  354  ;  Karr's  Adm'r  v.  Karr,  6 
Dana,  3  ;  Rowan  v.  Kirkpatrick,  14 
111.  1.  See  also  Raphael  v-  Boehm, 
II  Ves.  92;  S.  C  13  Ves.  407,590; 
Ashburnham  v.  Thompson,  13  Ves. 
402  :  Tebbs  v.  Carpenter,  1  Mad.  299, 
—  But  mere  neglect  to  invest  the  money 
or  an  improper  investment,  without 
gross  delinquency,  (Knott  v.  Cottee, 
13  E.  L.  &  E.  304  ;  Robinson  v.  Robin- 
son, 9  E.  L.  &  E.  69  ;  Schieftelin  v. 
Stewart,  1  Johns.  Ch.  620;  McCall's 
case,  1  Ash.  357 ;  English  v.  Harvey, 
2  Rawle,  305  ;  Harland's  case,  5  Rawle, 
323  ;  Eindlay  v.  Smith,  7  S.  &  R.  264 ; 
Dietterich  v.  Heft,  5  Barr,  87,)  or 
merely  mingling  the  trust  funds  ^^nth 
his  own,  is  not  suflBcient  to  charge  him 
with  compound  interest.  Clarkson  v. 
De  Peyster,  1  Hopkins,  Ch.  424  ;  2 
Wend.  "77,  S.  C  nom.  De  Peyster  v. 
Clarkson;  Stafford  in  re  11  Barb.  353; 
Ker  V.  Snead,  Circuit  Court  of  Vir- 
ginia, (Oct.  1847)  ;  Scarburgh,  J.,  11 
Law  Reporter,  217.  In  the  case  of 
Eay  V.  Howe,  1  Pick.  527,  and  Rob- 
bins  V.  Hayward,  cited  in  a  note  to 
this  case,  where  large  sums  of  money 
had  come  into  the  hands  of  a  guardian 


CH.  VII.]  TRUSTEES.  *104 

even  with  simple  interest  until  a  reasonable  time  for  invest- 
ment has  elapsed ;  and  this  has  *  been  held,  in  some  cases, 
six  months,  a  year,  or  even  two  years,  (c) 

A  trustee  must  not  himself  purchase  the  property  which  it 
is  his  duty  as  trustee  to  sell ;  nor  sell  the  property  which,  as 
trustee,  he  purchases.  This  rule  applies,  in  its  whole  extent, 
to  all  agents,  and  the  reasons,  limitations,  and  authorities  for 
it,  were  presented  in  treating  of  that  subject. 


SECTION  IV. 

PUBLIC   TRUSTEES. 

There  is  an  important  difference  between  these  trustees 
and  private  trustees,  in  respect  to  their  personal  responsibility 
for  their  contracts.  Where  one  acts  distinctly  for  the  public, 
and  in  an  official  or  quasi  official  capacity,  although  he  en- 
gages that  certain  things  should  be  done,  he  is  nevertheless 
not  liable  on  this  engagement,  unless  there  be  something  in 
the  contract,  or  some  admissible  evidence  respecting  it,  which 

of  infants,  there  being  rents  of  real  at  the  end  of  which  periods  the  interest 
estate  and  income  from  public  stocks  should  be  made  principal.  In  Duns- 
periodically  received,  and  no  account  comb  v.  Dunscomb,  1  Johns.  Ch.  508, 
iiad  been  settled  for  many  years,  it  was  six  months  after  receipt  of  the  moneys 
ordered  that  an  account  should  be  set-  was  thought  a  reasonable  time,  after 
tied  with  a  rest  for  every  year,  and  the  which  interest  should  be  charged.  In 
balance  thus  struck  be  carried  forward,  Merrick's  estate,  1  Ashm.  304,  six 
to  be  again  on  interest,  whenever  the  months  was  allowed.  In  De  Peyster 
sum  should  be  so  large  that  a  trustee  v.  Clarkson,  2  Wend.  77,  six  months 
acting  faithfully  and  discreetly  would  was  allowed.  In  Fox  v.  Wilcocks,  1 
have  put  it  into  a  productive  state.  Binn.  194,  the  administrator  was  held 
And  500  dollars  was  the  sum  which  .chargeable  with  interest  after  twelve 
the  court  thought  should  subject  the  months  had  elapsed  from  the  death 
guardian  to  this  charge.  But  for  cases  of  the  intestate.  In  Boynton  v.  Dyez', 
in  which  it  appears  to  be  doubted  18  Pick.  8,  one  year  was  considered  the 
whether  compound  interest  should  be  proper  period.  In  Schieffelin  v.  Stew- 
charged  to  a  trustee,  see  Estate  of  art,  1  Johns.  Ch.  R.  620,  the  plaintiff 
McCall,  1  Ashm.  357 ;  English  v.  Har-  was  administrator,  and  was  allowed 
Tey,  2  Rawle,  305;  Harland's  case,  5  from  the  8th  Sept.,  1803,  when  ad- 
Rawle,  323 ;  Findlay  v.  Smith,  7  S.  &  ministration  was  granted,  to  the  6th 
11.264;  Ackerman  v.  Emott,  4  Barb.  July,  1805,  when  the  last  debt  of  any 
626.  And  see  Dietterich,  v.  Heft,  5  magnitude  was  paid  to  the  estate ;  then 
Barr,  87.  interest  began,  and  the  account  was 
(c)  In  Karr  v.  Karr,  6  Dana,  3,  two  computed  afterwards  with  annual  rests, 
years  were  allowed  for  periodical  rests, 

VOL.  I.  10  [109] 


105* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


shows  that  the  parties  understood  and  intended  the  promisor 
to  make  his  promise  personally,  and  to  be  bound  himself, 
instead  of  the  State,  or  in  addition  to  the  State,  for  the  due 
performance  of  the  promise,  {d) 

*  But  trustees  and  other  officers  are  sometimes  held  per- 
sonally upon  their  contracts,  as  for  payment  of  wages,  mate- 
rials supplied,  &c.,  where  they  have  charge  of  public  works, 
and  have  funds  which  they  may  use  for  these  purposes,  and 
especially  where  the  nature  of  the  transaction  shows  that 
the  party  dealing  with  them  may  well  have  supposed  that 
he  was  dealing  with  them  on  their  own  account,  or  that 
they  intended,  although  acting  for  the  public,  to  be  re- 
sponsible for  the  materials  they  bought  or  the  labor  they 
hired,  (e)  Such  trustees  know  the  state  of  the  means  in 
their  hands,  and  how  far  they  may  rely  upon  a  public  pro- 
vision of  funds,  and  may  contract  accordingly,  while  those 


{d)  Macbeath  v.  Haldimand,  1  T.  R. 
172.  This  was  an  action  on  promises 
agaiust  the  defendant,  (who  was  Gover- 
nor of  Quebec.)  for  work  and  labor,  &c. 
Buller.  J.,  said,  "  It  is  true  that  he  (the 
defendant)  gave  the  orders  to  Sinclair, 
and  that  every  thing  which  the  plaintiff 
did  was  pursuant  to  directions  from  the 
latter,  whom  he  was  instructed  to  obey  ; 
but  these  orders  did  not  flow  from  the 
defendant  in  his  own  personal  character, 
but  as  governor  and  agent  for  the  pub- 
lic ;  ancT  so  the  plaintiff  himself  consi- 
dered it.  And  in  any  case  where  a  man 
acts  as  agent  for  the  public,  and  treats 
in  that  capacity,  there  is  no  pretence  to 
say  that  he  is  personally  liable."  Un- 
win  r.  Wolseley,  1  T.  R.  674.  Ash- 
hurst,  J.,  said,  "  it  would  be  extremely 
dangerous  to  hold  that  governors  and 
commanders  in  chief  should  make  them- 
selves personally  liable  by  contracts 
which  they  enter  into  on  the  part  of 
the  government.  It  would  be  detri- 
mental to  the  king's  service,  for  no 
private  person  would  accept  of  any 
command  on  such  terms.  The  case 
of  Macbeath  v.  Haldimand  seems  to 
govern  the  present.  It  was  there  de- 
termined that  a  commander  was  not 
answerable  for  contracts  entered  into 
by  him  on  behalf  of  government.  And 
whether  the  contract  be  by  parol  or  by 
deed,  it  makes  no  difference  as  to  the 

[110] 


construction  to  be  put  on  it.  That 
indeed  was  a  stronger  case  than  the 
pi'csent ;  because  there  it  was  left  open 
to  evidence,  from  whence  it  was  to  be 
inferred  that  the  contract  was  made  by 
the  defendant  as  the  agent  of  the 
government,  but  here  it  appears  in  ex- 
press terms  tliat  the  defendant  entered 
into  this  contract  on  the  behalf  of  go- 
vernment." See  also  Hodgson  r.  Dex- 
ter, 1  Cranch,  345  ;  Tucker  v.  Justices, 
13  Ire.  L.  434. 

(e)  Horsley  r.  Bell  and  others,  Am- 
bler, 769.  An  act  of  parliament  was 
passed  to  make  a  certain  brook  naviga- 
ble. The  defendants,  with  many  other 
persons,  were  named  commissioners  to 
put  the  act  in  execution.  Certain  tolls 
were  to  be  paid  by  vessels  which  should 
navigate  the  brook,  and  the  commission- 
ers were  empowered  to  borrow  money 
on  these  tolls.  The  commissioners  em- 
ployed the  plaintiff  to  do  different  parts 
of  the  works,  and  such  of  the  commis- 
sioners as  were  present  at  the  several 
meetings,  made  orders  relative  thereto. 
Every  one  of  them  was  present  at  some 
of  the  meetings,  but  no  one  was  present 
at  all  the  meetings.  The  fund  proving 
deficient,  it  was  held  that  all  the  acting 
commissioners  were  personally  liable 
to  the  plaintiff.  The  Lord  Chancellor 
and  the  judges  agreed  in  opinion.  "  The 
commissioners  had   power   to   borrow 


CH.  VII.]  TKUSTEES.  *106 

who  deal  with  them  cannot  know  this  at  all,  or  certainly  not 
so  well.  (/) 

The  true  principle  which  runs  through  all  of  these  cases, 
and  applies  alike  to  private  and  public  trustees,  is  this.  To 
whom  did  the  promisee  give  credit,  and  to  whom  did  the 
*  promisor  understand  him  to  give  credit  ?  If  the  promisee 
gave  credit  to  the  promisor,  and  was  justified  in  so  under- 
standing the  case,  and  the  promisor  as  a  rational  person 
knew  or  should  have  known  that  the  promisee  trusted  to 
him  personally,  and  he  did  not  guard  the  promisee  from  so 
trusting  him,  then  he  cannot  turn  him  afterwards  over  to 
those  whom  he  represents,  because  he  must  abide  his  re- 
sponsibility. On  the  other  hand,  if  the  promisor  supposed 
the  promisee  to  trust  only  to  those  for  whose  benefit  he 
acted,  or  rather  to  the  funds  and  means  possessed  by  him 
as  trustee,  and  if  he  had  a  right  to  suppose  so,  and  the 
promisee  did  not  demand  and  receive  the  assurance  of  his 
personal  liability,  then  no  such  liability  exists,  and  he  is 
bound  only  to  act  faithfully  as  a  trustee  in  the  discharge  of 
his  promise. 

An  agent  who  exceeds  his  authority  and  fails  to  bind 
his  principal,  becomes  liable  himself.  On  this  familiar  prin- 
ciple public  trustees  or  officers,  as  town  or  parish  officers, 
who  enter  into  contracts  in  their  official  capacity,  and  on 
behalf  of  the  corporations  which  they  represent,  if  they  so 
deviate  from  or  exceed  their  authority  as  not  to  bind  these 
corporations,  are  themselves  liable,  (g)     But  whether  on  the 

money,  and  ought  to  take  care  to  be  rests  on  strong  principle,  that  as   the 

provided.    That  tlie  workmen  who  en-  trustees  must  know  wliether  thei-e  are 

gaged  to  do  the  work  could  not  know  funds    to    answer    the    purpose,   they, 

the  state  of  the  fund,  nor  was  it  their  when   they  contract  with    others,  who 

business  to  inquire;    they  gave  credit  do   not   know,   act   as   if  representing 

to  the  commissioners."'    Cullen  v.  Duke  that  they  had  a  fund  applicable  to  the 

of  Queensberry,  1  Bro.  C  C.  101,  and  object,  and  are  then  personally  bound 

notes.  to  provide  funds  to  pay  the  contract- 

(/)  Higgins  V.  Livingstone,  4  Dow,  ors." 
341,  355.     Lord  Eldon,  in   this   case,         {(j)   Sprott  v.  Powell,  3  Bing.  478 ; 

said,   "As   to  the   general   liability  of  Leigh  r.  Taylor,  7  B.  &  C.  491 ;  Heu- 

parliamentary   trustees,   if   I   were    to  debourck  v.  Langton,  3  C-  &  P.  571  ; 

give    an    opinion,  I    would    say   that  Kirby  v.  Bannister,  5  B.  &  Ad.  1069; 

when  persons  act  under  a  parliament-  S.  C,  3  N.  &  M.  119  ;  Burton  r.  Grif- 

ary  trust,  and   state  themselves  as  so  fiths,  11   M.  &  W.  817  ;  Bay  v.  Cook,  2 

acting,  they  are  not  to   be   held   per-  N.  Jer.  343. — Uthwatt  i;.Elkins,  13  M. 

sonally  liable.    But  this  also,  I  think,  &  W.  772.     Church-wardens  and  over- 

[111] 


-  106  THE  LAW  OF   CONTRACTS.  [BOOK  I. 

contract,  or  in  case,  must  depend  on  the  character  and  cir- 
cumstances of  the  transaction,  (gg-) 

seers  of  a  parish  having  taken  a  lease  Mod.  559.     "  If  an  overseer  of  the  poor 

of  land  in  their  official  capacity,  which  contract  with  tradesmen  upon  account 

they  were  not  authorized  by  the  statute  of  the  poor,  and  upon  his  own  credit, 

59  Geo.  3,  c.  12,  to  hold  in  the  nature  as  soon  as  he  receives  so  much  of  the 

of  a  corporation,  it  was  lield  to  be  a  poor's  money,  it  becomes  his  own  debt." 

personal  undertaking  of  their  own,  on  Holt,  C.J. 
which  they  were  individually  responsi-         (gg)  See  ante,  p.  57,  note  {/.) 
ble  for  the  payment  of  rent.  —  Anon.  1 2 

[112] 


en.  VIII. 


OF  EXECUTORS  AND  ADMINISTRATORS. 


107 


CHAPTER  VIII. 

OF  EXECUTORS  AND   ADMINISTRATORS. 

They  act  as  the  personal  representatives  of  the  deceased, 
having  in  their  hands  his  means,  for  the  purpose  of  dis- 
charging his  liabilities  or  executing  his  contracts,  and  of 
carrying  into  effect  his  will,  if  he  have  left  one;  and  in 
general,  they  are  liable  only  so  far  as  these  means,  or  assets 
in  their  hands,  are  applicable  to  such  purpose.  But  they 
may  become  personally  liable ;  and  a  clause  in  the  statute  of 
frauds,  hereafter  to  be  spoken  of,  refers  to  this  subject.  In 
England  it  is  regarded  as  the  peculiar  province  of  a  court  of 
equity  to  administer  justice  in  cases  of  legacies.  (A)     The  law  • 


(h)  Deeks  v.  Strutt,  5  T.  E.  690,  and 
see  Jones  v.  Tanner,  7  B.  &  Cress.  542. 
But  it  seems  Deeks  v.  Strutt  is  to  be 
understood  as  only  deciding  that  an  ac- 
tion for  a  legacy  cannot  be  maintained 
upon  an  assent  of  the  executor  merely 
implied  from  his  possession  of  sufficient 
assets  ;  leaving  it  open  to  say  that  an 
action  may  lie  upon  an  express  promise 
by  him  in  consideration  of  assets,  or  up- 
on an  express  admission  by  him  that  he 
has  money  in  his  hands  for  the  pay- 
ment of  such  legacy.  Barber  v.  Eox, 
2  Wms.  Saund.  137,  c.  n.  (a,)  citing 
Atkins  V.  Hill,  Cowp.  284,  and  Gor- 
ton V.  Dyson,  1  B.  &  B.  219.  It  has 
been  held  that  where  an  account  of 
the  residuary  estate  of  a  testator  has 
been  made  out  by  the  executors,  and 
signed  by  the  parties  interested,  under 
which  account  all  of  them  have  been 
paid  except  one,  such  one  may  recover 
his  proportion,  v/ith  interest,  in  assump- 
sit against  the  executors.  Gregory  v. 
Harman,  3  C.  &  P.  205.  Upon  the  as- 
sent of  the  executor  to  a  bequest  of  a 
specific  chattel,  whether  personal  or  real, 
the  interest  in  it  vests  in  the  legatee,  and 
he  may  recover  it  by  an  action  at  law. 
Doe  V.  Guy,  3  East,"l20,  And  see  Para- 
mour I'.  Yardly,  Plowd.  539.  Whether 
an  executor  has  assented  to  a  bequest  is 
a  question  of  fact  for  the  jury,  and  not  a 
matter  of  law  to  bo  determined  by  the 
10* 


court.  Mason  f.Farnell,12  M.  &  W.674. 

—  Lord  Holt  is  reported  to  have  said, 
Ewer  r.  Jones,  2  Salk.  415,  that  a  devisee 
may  maintain  an  action  at  common  law 
against  a  tertenant,  for  a  legacy  devised 
out  of  land  :  for  where  a  statute,  as  the 
statute  of  wills,  gives  a  right,  the  party 
by  consequence  shall  have  an  action  at 
law  to  recover  it.  In  Braithwaite  v. 
Skinner,  5  M.  &  W.  313,  this  dictum 
was  much  discussed,  and  the  learned 
Barons  were  of  opinion  that  it  was  to 
be  taken  with  a  material  qualification, 
which  is  thus  stated  by  Parke,  B. :  "  The 
statute  of  wills  enables  a  party  to  dis- 
pose by  will  of  the  property  which  he 
might  have  disposed  of  during  his  life- 
time at  his  free  will  and  pleasure.  I 
think  the  meaning  of  Lord  Holl  is  this 

—  that  if  a  person  gives  an  interest 
which  could  be  enforced  by  an  action  at 
law,  the  statute  would  give  an  action 
for  it.  Thus,  if  a  person  devised  by 
will  a  right  of  common,  the  devisee 
would  have  a  right  of  action  for  it ;  so 
if  he  devised  a  rent  which  was  not  a 
freehold  rent,  (which  could  not  be  the 
subject  of  an  action  at  law,)  an  action 
would  lie  for  it.  So  if  he  devised  a 
right  of  way,  it  could  be  enforced  by  ac- 
tion ;  or  if  he  left  a  term,  the  right  to  it 
might  be  enforced  by  ejectment.  So  if 
the  testator  clearly  meant  to  impose  a 
duty  upon  another  person,  obliging  him 

[113] 


108 


TEE   LAW   OF     CONTRACTS. 


[book  I. 


and  practice  on  this  subject  vary  somewhat  in  difFerent  States 
of  this  country. 

It  is  said  that  the  promise  of  an  executor  to  pay  a  debt, 
"  whenever  sufficient  effects  are  received  from  the  estate  of  the 
deceased,"  must  be  construed  to  mean  sufficient  effects  re- 
ceived in  the  ordinary  course  of  administration,  according  to 
law.  (i)  If  an  executor  or  administrator  receives  as  such  a 
promissory  note  or  bill  of  the  deceased,  and  indorses  the 
same,  he  is  liable  upon  it  personally,  (j)  If  he  makes  a  note 
or  bill,  signing  it  "  as  executor,"  he  is  personally  liable,  unless 
he  expressly  limits  his  promise  to  pay,  by  the  words,  "  out  of 
the  assets  of  my  testator,"  or  "  if  the  assets  be  sufficient,"  or  in 
some  equivalent  way  ;  (k)  but  a  note  or  bill  so  qualified  would 
not   be    negotiable,   because    on   condition.     If  an  executor 


to  pay  a  legacy,  an  action  of  debt  would 
lie  for  it  against  the  person  on  wliom 
the  duty  of  paying  the  money  was  im- 
posed :  as  if  the  testator  left  an  estate  in 
fee  to  A.,  directing  him  to  pay  a  sum  of 
money  to  B. ;  I  am  not  prepared  to  say 
that  an  action  of  debt  might  not  lie,  af- 
ter A.  had  accepted  the  estate,  founded 
upon  the  duty  created  by  the  testator  of 
paying  that  sum.  But  it  is  going  too 
far  to  say  that  the  statute  would  give  a 
right  of  action  for  those  things  which 
are  merely  equitable  interests ;  as,  for 
example,  if  a  testator  had  created  a  trust 
in  favor  of  a  person,  it  would  be  absurd 
to  say  that  person  could  enforce  the 
trust  by  an  action  at  law."  In  this  case 
the  testator  devised  lands  in  fee,  after 
the  determination  of  certain  life  estates, 
to  A.,  B.,  and  C,  as  tenants  in  common, 
subject  to  and  charged  with  the  pay- 
ment of  200/.,  which  he  thereby  be- 
queathed to,  and  to  be  equally  divided 
among  the  children  of  his  niece  :  A.  and 
B.,  during  the  life  of  one  of  the  tenants 
for  life,  granted  their  reversion  in  two 
undivided  third  parts  of  the  land  to 
mortgagees  for  500  years.  It  was  held 
that  an  action  of  debt  could  not  be  main- 
tained against  the  termors  for  a  share  of 
200/.  so  bequeathed  ;  on  the  ground  that 
admitting  Lord  Holt^s  dictum  to  be  cor- 
rect, that  where  the  testator  merely  in- 
tended to  create  a  duty  from  one  person 
to  another,  the  law  would  give  a  remedy 
—  in  this  case  no  duty  was  imposed  up- 
on the  defendants  towards  the  plaintiff, 
[114] 


which  could  be  enforced  by  an  action  of 
debt.  Semble,  no  action  at  law  could  be 
maintained,  but  the  proper  remedy  was 
in  equity.  And  see  on  this  point  Beeck- 
er  V.  Beecker,  7  Johns.  99  ;  Van  Orden 
V.  Van  Orden,  10  Johns.  30  —  In  Con- 
necticut and  New  Hampshire,  it  has 
been  held  that  an  action  at  law  will  lie 
against  an  executor  upon  a  promise  im- 
plied from  the  possession  of  assets. 
Knapp  V.  Hanford,  6  Conn.  170  ;  Pick- 
ering V.  Pickering,  6  N.  H.  120.  But  it 
is  believed  that  in  jurisdictions  where 
courts  of  chancery  have  existed,  the  doc- 
trine of  the  English  cases  has  been  fol- 
lowed. See  Kent  v.  Somervell,  7  G.  & 
Johns.  265  ;  Sutton  v.  Crain,  10  G.  & 
Johns.  458.  —  An  action  at  law  by  a  le- 
gatee for  a  legacy  on  the  executor's 
promise,  must  be  brought  against  the 
executor  in  his  personal,  not  in  his  re- 
presentative, capacity.  Kayser  v.Disher, 
9  Leigh,  357. 

{i)  Bowerbank  v.  Monteiro,  4  Taunt. 
844. 

(./)  Bulkr,  J.,  King  v.  Thom,  1  T.  R. 
489;  Curtis's  Ex'x  t'.Bank  of  Somerset, 

7  H.  &  Johns.  25. 

(/.)  Childs  V.  Monins,  2  B.  &  B.  460 ; 
King  V.  Thom,  1  T.  R.  489  ;  Forster  v. 
Fuller,  8  Mass.  58,  where  the  principle 
was  applied  to  the  case  of  a  guardian. — 
As  to  covenants  by  executors  or  admi- 
nistrators, made  professedl}^  in  their  ca- 
pacity as  such,  see  Sumner  v.  Williams, 

8  Mass.   162;    Thayer  v.   Wendell,  1 
Gall.  37. 


CH.    VIII.]         OF   EXECUTORS   AND    ADMINISTRATORS. 


lOS 


or  administrator  submits  a  disputed  question  to  arbitration, 
in  general  terms,  and  without  an  express  limitation  of  his  lia- 
bility, and  the  arbitrators  award  that  he  shall  pay  a  certain 
sum,  he  is  liable  to  pay  it  whether  he  has  assets  or  not.  (I) 
But  if  the  award  be  merely  that  a  certain  sum  is  due  from 
the  estate  of  the  deceased,  without  saying  that  the  executor 
or  administrator  is  to  pay  it,  he  is  not  precluded  from  denying 
that  he  has  assets,  (m) 

When  there  is  a  contract  with  an  executor  or  administrator, 
by  virtue  of  which  money  has  become  due,  and  the  money 
if  recovered  will  be  assets  in  his  hands,  he  may,  in  general,  sue 
for  it  in  his  representative  capacity,  (n)  And  so  he  may  be 
sued  as  executor  for  money  paid  for  his  use  in  that  capacity,  (o) 

With  respect  to  covenants  relating  to  the  freehold,  the  rule 
of  law  is  that  for  the  breach  of  a  covenant  collateral  or  in 
gross,  whether  such  breach  occur  before  or  after  the  death  of 
the  covenantee,  the  personal  representative  must  sue  and 
not  the  heir;  (p)  for  the  breach  of  a  covenant  which  runs  ivith 
the  land,  the  heir  must  sue  if  the  breach  occur  after  the  cove- 
nantee's death,  the  personal  representative  if  it  occur  be- 
fore, (q)  The  doctrine  of  a  continuing  breach,  for  which  the 
heir  or  assignee  may  recover  if  the  ultimate  and  substantial 
damage  is  suffered  by  him,  was  established  in  England  by 
the  case  of  Kingdon  v,  Nottle,  (r)  but  it  has  not  been  adopt- 


(l)  Eiddell  v.  Sutton,  5  Bing.  200. 

(m)  Pearson  v.  Henry,  5  T.  R.  6. 

(n)  Cowell  V.  Watts,  6  East,  405 ; 
King  V.  Thorn,  1  T.  R.  487  ;  Marshall 
V.  Broadhurst,  1  Tyr.  348,  1  Cr.  &  Jcr. 
403;  Heath  v.  Chilton,  12  M.  &  W. 
632  ;  Kane  v.  Paul.  14  Pet.  .33. 

(o)  Ashby  v.  Ashby,  7  B.  &  Cress. 
444. — But  he  is  only  liable  personaUtj  in 
an  action  for  money  lent  to  him  as  exe- 
ecutor,  or  had  and  received  by  hira  as  ex- 
ecutor. Rose  V.  Bowler,  1  H.  Black. 
108  ;  Powell  v.  Graham,  7  Taunt.  586  ; 
Jennings  v.  Newman,  4  T.  R.  347  ;  and 
sec  observations  of  the  judges  in  Ashby 
V.  Ashbv,  7  B.  &  Cress.  444 ;  Miles  v. 
Durnfofd,  13  E.  L.  &  E.  120. 

(p)  Lord  Ahlnqer,  C.  B.,  Raymond  v. 
Fitch,  2  Cr.  M.  '&  R.  588,  599,  5  Tyr. 
985  ;  Lucy  ;.'.  Levington,  2  Lev.  26,  1 
Vcntris,  175  ;  Bacon's  Abr.  Executors 
and  Administrators,  N. 


(q)  Com.  Dig.  Covenant,  B.  1,  Admi- 
nistration, B.  fs  ;  Morley  v.  Polhill,  2 
Ventris,  56,  3  Salk.  109  ;  Smith  v.  Si- 
mons, Comberbach,  64. 

(»•)  1  M.  &  Sel.  355  ;  4  M.  &  Sel.  53, 
(with  which  King  v.  Jones,  5  Taunt. 
418,  accords.)  Along  with  the  authority 
of  this  case  seems  to  fall  also  tlie  doc- 
trine on  which  it  was  founded,  and  of 
Avhich  so  much  is  made  in  the  books, 
(see  Williams  on  Executors,  1st  Ed. 
519  ;  1  Lomax  on  Executors,  292,)  that 
an  action  can  in  no  case  be  maintained 
in  the  name  of  the  executor,  unless  an 
injury  to  the  personal  estate  appears. 
In  England,  the  Court  of  Exchequer 
have  gone  as  f;ir  as  they  can  without 
quite  overthrowing  Kingdon  v.  Nottle. 
See  the  opinion  of  Lord  Abinrjer  in  Ray- 
mond I'.  Fitch,  2  C.  M.  &  R.  596,  600, 
and  the  still  later  case  of  Kicketts  v. 
Weaver,  12  M.  &  W.  718,  where  Parke, 

[115] 


110 


THE  LAW   OF   COXTRACTS. 


[book  I. 


ed  in  this  country,  (s)  In  general,  every  right  ex  cov,tractu, 
which  the  deceased  possessed  at  the  time  of  his  death,  passes 
to  his  executor  or  administrator ;  (^)  and  so  strong  is  this 
rule,  that  it  prevails  against  special  words  of  limitation  in 
the  contract  itself,  (u)  But  contracts  may  be  extinguished 
and  absolutely  determined  by  the  death  of  the  party  with 
whom  they  are  made,  (v)  If  money  be  payable  by  a  bond 
to  such  person  as  the  obligee  may  appoint  by  will,  and  the 
testator  makes  no  appointmeift  by  his  will,  the  debt  dies,  as 
the  executor  is  not  considered  his  appointee  for  that  pur- 
pose, (iv)  Nor  could  an  administrator,  where  there  was  no 
will,  claim  the  money. 

The  law  raises  no  implied  promise  to  the  personal  repre- 
sentative, in  respect  of  a  promissory  note  held  by  the  de- 
ceased, (x) 


B.,  said,  "  The  question  therefore  is  re- 
duced to  this,  -whether  an  executor  can 
sue  for  the  breach  of  a  covenant  to  re- 
pair in  the  lifetime  of  the  lessor,  who 
was  tenant  for  life,  without  averring  spe- 
cial damage.  On  that  point  Raj'mond 
V.  Fitch,  in  -which  all  the  cases  were 
considered,  is  an  authority  directly  in 
point,  and  ought  not  to  be  shaken.  The 
result  of  that  case  is,  that  unless  it  be  a 
covenant  in  which  the  heir  alone  can  sue 
Caccording  to  Kingdon  v.  Nottle  and 
King  r.  Jones)  for  a  breach  of  the  cove- 
nant in  the  lifetime  of  the  lessor,  the  ex- 
ecutor can  sue,  unless  it  be  a  mere 
personal  contract,  in  which  the  rule  ap- 
plies that  actio  personalis  moritur  cum 
persona.  The  breach  of  covenant  is  the 
damage  ;  if  the  executor  be  not  the  pro- 
per person  to  sue,  the  action  cannot  be 
bi'ought  by  any  one."  In  this  country, 
where  the  courts  are  free  from  the 
shackles  which  the  authority  of  King- 
don V.  Xottle  and  kindred  cases  imposes, 
it  is  reasonable  to  believe  that  the  later 
doctrine  (which  is  also  the  older  doc- 
trine.) as  to  actions  by  executors,  will 
be  carried  to  its  full  extent.  See  Clark 
V.  Swift,  3  Mete.  390. 

(5)  Greenby  v.  Wilcocks,  2  Johns.  1  ; 
Mitchell  V.  Warner,  5  Conn.  R.  497  ; 
Beddoe's  Executor  v.  Wadsworth,  21 
Wend.  120  :  Clark  r.  Swift.  3  ]\Ietc.  390  ; 
Hacker  v.  Storer,  8  Greenl.  228,  232;  4 
Kent,  Comm.  472. — The  case  of  King- 
don V.  Nottle  has,  however,  been  sub- 
stantially followed  in  Ohio  and  Indiana. 

[116] 


Foote  V.  Burnet,  10  Ohio  R.  317  ;  Mar- 
tin V.  Baker,  5  Blackford,  232. 

(t)  Comyns's  Digest,  Administration, 
B.  13  ;  Bacon's  Abridgment,  Executors 
and  Administrators,  N. ;  Morley  v.  Pol- 
hill,  2  Ventris,  56,  3  Salk.  109  ;  Smith 
V.  Simonds,  Comberbach,  64 ;  Lucy  v. 
Leviugton,  1  Ventris,  176,  2  Lev.  26  ; 
Ravmond  v.  Fitch,  2  Cr.  M.  &  R.  588 ; 
Ricketts  r.  Weaver,  12  M.  &  W.  718; 
Carr  v.  Roberts,  5  B.  &  Ad.  84,  per 
Parhe,  J. 

(it)  Devon  v.  Pawlett,  11  Vin.  Abr. 
133,  pi.  27.  Somewhat  analogous  to 
this  is  the  point  stated  in  Leonard  Le- 
vies' case,  10  Co.R.  87,  b,  that  a  chattel 
interest  in  land  cannot  be  entailed. 

(v)  For  example,  the  right  to  recover 
for  the  breach  of  a  promise  to  marry 
does  not  pass  to  the  executor.  Cham- 
berlain V.  Williamson,  2  ]\I.  &  Sel.  408 ; 
Stebbins  v.  Palmei-,  1  Pick.  71.  And 
so  in  other  cases  where  the  injury  is  per- 
sonal, though  accompanying  a  breach  of 
contract.  Parke.  B.,  Beckham  v.  Drake, 
8  IM.  &  W.  854 ;  Lord  Ellenboroiir;h,  C. 
J.,  Chamberlain  v.  Williamson,  2  M  & 
Sel.  415,  416.  But  see  Knights  v. 
Quarles,  2  B.  &  B.  104. 

(if)  Pease  r.  Mead,  Hob.  9.  And 
the  reason  given  is  that  the  payee  in 
that  case  is  evidently  to  take  for  his  own 
use,  for  the  word  pay  "  carryeth  proper- 
ty with  it ; "  whereas  the  execiitor,  when 
he  recovers  as  assignee  in  law  of  the 
testator,  takes  for  the  use  of  the  testator. 

(x)  Therefore  the  executor  in  bring- 


CH.   VIII.]         OF   EXECUTORS   AND   ADMINISTRATORS.  Ill 

Where  the  contract  with  the  deceased  is  of  an  executory- 
nature,  and  the  personal  representative  can  fairly  and  suffi- 
ciently execute  all  that  the  deceased  could  have  done,  he  may 
do  so,  and  enforce  the  contract.  (?/)  But  where  an  executory 
contract  is  of  a  strictly  personal  nature  —  as,  for  example, 
with  an  author  for  a  specified  work,  the  death  of  the  writer 
before  his  book  is  completed,  absolutely  determines  the  con- 
tract, unless  what  remains  to  be  done — as  for  example,  the 
preparing  of  an  Index,  or  Table  of  Contents,  &c.,  can  cer- 
tainly be  done  as  well  and  to  the  same  purpose  by  another,  (z) 

If  executors  or  administrators  pay  away  money  of  the  de- 
ceased by  mistake,  or  enter  into  contracts  for  carrying  on  his 
business  for  the  benefit  of  his  personal  estate,  and  to  wind  up 
his  affairs,  they  may  sue  either  in  their  individual  or  their 
representative  capacities ;  (a)  but  they  should  sue  in  the  lat- 
ter capacity,  in  order  to  avoid  a  set-off"  against  them  of  their 
individual  debts,  (b)  The  title  of  an  administrator  does  not 
exist  until  the  grant  of  administration,  and  then  reverts  back 
to  the  death  of  the  deceased ;  but  only  in  order  to  protect 
the  estate,  and  not  for  any  other  purpose,  (c)  And  if  an 
agent  sells  goods  of  the  deceased,  after  his  death,  and  in 
ignorance  of  his  decease,  the  administrator  may  adopt  the 
contract  and  sue  upon  it.  (d) 

ing  an  action  upon  such  note,  must  de-  his  proportion  of  the  price  of  the  article 

clare  upon  the  promise  to  the  testator;  to  be  furnished.     Prior  v.  Hcmbrow,  8 

unless  an  express  promise  to  the  execu-  M.  &  W.  873,  889. 
tor  can  be  shown.     Timmis  v.  Piatt,  2         (z)  Lord  Lyndhurst,  C  B.,  and  Bay- 

M.  &  W.  720.  %,  B.,  Marshall  v.  Broadhurst,  1  Tyr. 

(y)  Marshall   v.  Broadhurst,  1    Tyr.  349.     Sec  Siboni  v.  Kirkman,  1  M.  & 

348,  1  Cromp.  &  Jer.  403.     See  Wer-  W.  423. 

ner  v.  Humphreys,  3  Scott,  N.  R.  226.—         (a)  Clark  v.  Hougham,  2  B.  &  Cress. 

E  converso,  the  personal  representative  149;  Aspinall  v.  Wake,  10  Bing.  51; 

is  bound  to  complete  such  a  contract,  Webster  v.  Spencer,  3  B.  &  Aid.  360  ; 

and,  if  he  does  not,  may  be  made  to  pay  Ord  t;.  Fenwick,  3  East,   104;Merritt 

damages  out  of  the  assets.     Wentworth  v.  Seaman,  2  Selden,  168. 
V.  Cock,   10  Ad.  &  El.  42;  Siboni  v.         (b)  Fer  Bayley,  Holroyd,  and  Best,  J  J., 

Kirkman,  1  M.  &  W.418,  423.— Where  Clark  v.  Hougham,  2  B.  &  Cress.  155, 

several   persons  jointly  contract   for   a  156,  157. 

chattel,  to  be  made  or  procured  for  the        (c)  Morgan  v.  Thomas,  18  E.  L.  &E 

common  benefit  of  all,  and   the  execu-  526  ;  Foster  v.  Bates,  12  M.  &  W.  22 

tors  of  any  party  dying  are  by  agree-  Lawrences.  Wright,  23  Pick.  128;  Rat 

raent  to  stand  in  the  place  of  such  party  toon  v.  Overacker,  8  Johns.  126 ;  Win^ 

dying,  although  the  legal  remedy  of  the  Chester  v.  Union  Bank,  2   G.  &  Johns 

party  employed  would  be  solely  against  79,  80;  Welchman  v.  Sturgis,  13  Q.  B 

the  survivors,  yet  the  law  will  imply  a  552;  Bell  v.  Speight,  11  Hump.  451. 
contract   on   the  part  of  the  deceased         {d)  Foster  v.   Bates,    12   M.    &  W. 

contractor,  that  his  executors  shall  pay  226. 

[117] 


112* 


THE  LAW   OF   CONTRACTS. 


[book  I. 


On  the  death  of  one  of  several  executors,  either  before  or 
after  probate,  the  entire  right  of  representation  survives  to  the 
^others,  (e)  But  if  an  administrator  dies,  or  a  sole  executor 
dies  intestate,  no  interest  and  no  right  of  representation  is 
transmitted  to  his  personal  representative.  (/) 

An  executor  de  son  tort  is  liable  not  only  to  an  action  by 
the  rightful  executor  or  administrator,  but  may  be  sued  by  a 
creditor  of  the  deceased,  (g-)  And  it  is  held  in  England  that 
an  executor  de  son  tort  of  a  rightful  executor  is  liable  in  the 
same  manner  as  a  rightful  executor  of  the  original  testator, 
for  his  debts,  [gg;)  But  the  rightful  executor  or  adminis- 
trator cannot  be  prejudiced  by  an  act  or  contract  of  an  exe- 
cutor de  son  tort,  (h)  And  it  would  seem,  that  if  an  executor 
de  son  tort  be  afterwards  made  administrator,  he  is  not  bound 
by  a  contract  made  by  himself  as  executor  before  the  grant 
of  administration,  (i) 


(e)  Flanders  v.  Clark,  3  Atk.  509. 
So,  in  the  case  of  the  death  of  one  of 
two  administrators,  the  administration 
survives  to  the  other.  Hudson  v.  Hud- 
son, Cas.  Temp.  Talb.  127.— That  joint 
executors  are  one  person  in  law,  Shaw 
V.  Berry,  35  Maine,  279.  But  see  Smith 
V.  Whiting,  9  Mass.  334. 

(  f)  Com.  Dig.  Administrator,  B.  6  ; 
Tingrey  v.  Brown,  1  Bos.  &  Pul.  310. 

(cj)  Curtis  V.  Vernon,  3  T.  R.  587. 

(g(j)  Meyrick  v.  Anderson,  14  Q.  B. 
719.  . 

(h)  Buckley  v.  Barber,  15  Jur.  63, 
(Exch.)  1  Law  &  Eq.  506  ;  Mountford 
V.  Gibson,  4  East,  441  ;  Dickenson  v. 
Naule,  1  Nev.  &  Man.  721  ;  where  A. 
having  proved  a  will,  in  which  she  sup- 
posed herself  to  be  appointed  executrix, 
employed  the  plaintifl',  an  auctioneer,  to 
sell  the  goods  of  the  testator;  and  they 
were  sold  to  the  defendant,  who,  as  an 


inducement  to  the  plaintiff  to  let  him 
remove  the  goods  without  payment,  ex- 
pressly promised  to  pay  the  plaintiff  as 
soon  as  the  bill  was  made  out.  Probate 
was  afterwards  granted  to  B.,  the  real 
executrix,  who  gave  notice  to  the  de- 
fendant to  pay  the  price  to  her.  Held, 
that  the  plaintiff  could  not  maintain  an 
action  against  the  defendant  for  the 
price. — But  where  the  act  of  the  execu- 
tor de  son  tort  was  done  in  the  due 
course  of  administration,  and  is  one 
which  the  rightful  executor  would  have 
been  compellable  to  do,  such  act  shall 
stand  good.  Graysbrook  v.  Fox,  1 
Plowd.  282  ;  Thompson  v.  Harding,  20 
E.  L.  &  E.  145. 

(?)  Doe  V.  Glenn,  1  Ad.  &  EI.  49 ;  3 
Nev.  &  Man.  837,  S.  C. ;  Wilson  v. 
Hudson,  4  Harring.  169.  But  see  contra 
Walworth,  C,  Vroom  v.  Van  Home, 
10  Paige,  558  ;  Walker  v.  May,  2  Hill, 
Ch.  (S.  C.)  23. 


[118] 


CH.  IX.3  GUARDIANS.  113 


CHAPTER  IX. 

GUARDIANS. 

Sect.  I.  —  Of  the  kinds  of  Guardians. 

Guardianship  at  common  law  has  fallen  into  comparative 
disuse  in  this  country,  although  many  of  the  principles  which 
determined  the  rights  and  duties  of  that  relation  are  adopted, 
with  various  qualifications,  in  the  guardianships  by  testa- 
mentary appointment  of  the  father,  or  by  the  appointment  of 
courts  of  probate  or  chancery,  which  prevail  with  us.  We 
have  also  by  statute  provisions,  guardians  of  the  insane,  and 
of  spendthrifts.  All  of  these  rest  upon  the  general  principle, 
that  it  is  the  duty  of  society  to  provide  adequate  care  and 
protection  for  the  person  and  property  of  those  who  are  wholly 
unable  to  take  care  of  themselves. 

So  far  as  relates  to  contracts  to  which  guardians  are  par- 
ties, we  can  do  little  more  than  refer  to  the  statutes  of  the 
several  States,  in  which  the  obligations  and  duties  of  guard- 
ians, their  powers,  and  the  manner  in  which  their  powers 
may  be  exercised,  are  set  forth,  usually  with  much  minute- 
ness and  precision. 

One  principle,  however,  should  be  stated ;  which  is,  that 
guardians  of  all  descriptions  are  treated  by  courts  as  trustees  ; 
and,  in  almost  all  cases,  they  are  required  to  give  security  for 
the  faithful  discharge  of  their  duty,  unless  the  guardian  be 
appointed  by  will,  and  the  testator  has  exercised  the  power 
given  him  by  statute,  of  requiring  that  the  guardian  shall  not 
be  called  upon  to  give  bonds.  But  even  in  this  case,  such 
testamentary  provision  is  wholly  personal ;  and  if  the  indi- 
vidual dies,  refuses  the  appointment,  or  resigns  it,  or  is 
removed  from  it,  and  a  substitute  is  appointed  by  court,  this 
substitute  must  give  bonds. 

[119] 


114 


THE   LAW   OF   CONTKACTS. 


[book  I. 


SECTION  II. 
OP   THE   DUTY   AND    POWER   OP   A    GUARDIAN. 

The  guardian  is  held  in  this  country  to  have  only  a  naked 
authority,  not  coupled  with  an  interest,  (j)  His  possession 
of  the  property  of  his  ward  is  not  such  as  gives  him  a  per- 
sonal interest,  being  only  for  the  purpose  of  agency.  But, 
for  the  benefit  of  his  ward,  he  has  a  very  general  power  over 
it.  He  manages  and  disposes  of  the  personal  property  at  his 
own  discretion,  [k)  although  it  is  safer  for  him  to  obtain  the 
authority  of  the  court  for  any  important  measure;  he  may 
lease  the  real  estate,  if  appointed  by  will  or  by  the  court,  but 
the  guardian  by  nature  cannot;  (/)  he  cannot  however  sell  it 
without  leave  of  the  proper  court.  Nor  should  he,  in  general, 
convert  the  personal  estate  into  real,  without  such  leave,  (m) 


(j)  Granbv  v-  Amherst,  7  Mass.  1,  6. 

(k)  Field  v.  Schicffelin,  7  Johns.  Ch. 
154.  "I  apprehend  that  no  doubt  can 
be  entertained  as  to  the  competency  of 
the  guardian's  power  over  the  dispo- 
sition of  the  personal  estate,  including 
the  choses  in  action,  as  between  him 
and  the  boimjide  purchaser.  The  guar- 
dian in  socage  of  tlie  real  estate  may 
lease  it  in  his  own  name,  and  dispose  of 
it  during  the  guardianship,  (and  the 
chancery  guardian  has  equal  authority,) 
though  he  cannot  convey  it  absolutely 
without  the  special  authority  of  this 
court,  because  the  nature  of  the  trust 
does  not  retjuire  it."  Kent^  C.  This 
case  decides  that  the  purchaser  of  the 
ward's  personal  estate  is  not  responsible 
for  the  faithful  application  of  the  pur- 
chase-money by  the  guardian,  unless  he 
knew  or  had  sufficient  information  at 
the  time  that  the  guardian  contemplated 
a  breach  of  trust,  and  intended  to  mis- 
apply the  money ;  or  was  in  fact  by  the 
\QYy  transaction  applying  it  to  his  own 
private  purpose. —  Ellis  r.  Essex  Merri- 
mack Bridge,  2  Pick.  243.  The  guar- 
dian of  a  non  comjms  mentis  can  sell  her 
personal  estate  at  iiis  discretion,  and  her 
real  estate  with  license  from  the  court. 
"  It  is  true  the  guardian  ought  not  to 
sell  personal  estate,  unless  the  proceeds 
are  wanted  for  the  due  execution  of  his 

[120] 


trust,  or  unless  he  can  by  the  sale  pro- 
duce some  advantage  to  the  estate,  but 
having  the  power  without  obtaining  any 
special  license  or  authority,  a  title  un- 
der him  acquired  bond  fide  by  the  pur- 
chaser will  be  good,  for  he  cannot  know 
whether  the  power  has  been  executed 
with  discretion  or  not."  Parker,  C.  J. 
—  Dorsey  v.  Gilbert,  11  Gill  &  Johns.  87. 
The  court  of  chancery  may  authorize  a 
sale  of  the  ward's  real  estate. — Also  in 
re  Salisbury,  3  Johns.  Ch.  347;  Hedges 
V.  Eiker,  5  Johns.  Ch.  163:  Mills  V.Den- 
nis, 3  Johns.  Ch.  367.  "  The  court  may 
change  the  estate  of  infants  from  real 
into  personal,  and  from  jiersonal  into 
real,  whenever  it  deems  such  a  proceed- 
ing most  beneficial  to  the  infant.  The 
proper  inquiry  in  such  cases  will  be, 
whether  a  sale  of  the  whole,  or  only  of  a 
pai-t,  and  what  part  of  the  premises  will 
be  most  beneficial."    Kent,  C. 

(I)  May  V.  Calder,  2  Mass.  56.  A 
lease  of  an  infant's  land  by  his  father  as 
natural  guardian,  is  void. 

(?n)  The  cases  cited  (3  Johns.  Ch. 
348,  370;  5  Johns.  Ch.  163,)  affirm 
the  power  of  a  court  to  order  the  minor's 
real  estate  to  be  converted  into  personal, 
or  his  personal  into  real,  but  do  not  ex- 
pressly deny  the  guardian's  authority  to 
do  the  latter.     See  supra,  note  (k.) 


CH.  IX.]  GUARDIANS.  115 

And  where  a  court  of  equity  authorizes  a  conversion  of  real 
estate  into  personal,  or  vice  versa,  it  will,  if  justice  requires 
it,  provide  that  the  acquired  property  retains  the  character 
and  legal  incidents  of  the  original  fund,  (n) 

As  trustee,  a  guardian  is  held  to  a  strictly  honest  discharge 
of  his  duty,  and  cannot  act  in  relation  to  the  subject  of  his  trust 
for  his  own  personal  benefit,  in  any  contract  whatever.  And 
if  a  benefit  arises  thereby,  as  in  the  settlement  of  a  debt  due 
from  the  ward,  this  benefit  belongs  wholly  to  the  ward,  (o) 
He  must  not  only  neither  make  nor  suffer  any  waste  of  the 
inheritance,  but  is  held  very  strictly  to  a  careful  manage- 
ment of  all  personal  property,  (p)  He  is  responsible  not  only 
for  any  misuse  of  the  ward's  money  or  stock,  but  for  letting 
it  lie  idle  ;  and  if  he  does  so  without  sufficient  cause,  he  must 
allow  the  ward  interest  or  compound  interest  in  his  account. 
This  subject  is  more  fully  presented  in  treating  of  the  respon- 
sibility of  Trustees,  (q) 

And  to  secure  the  proper  execution  of  his  trust,  he  is  not  only 
liable  to  an  action  by  the  ward,  after  the  guardianship  termi- 
nates, but  during  its  pendency  the  ward  may  call  him  to 
account  by  his  next  friend,  or  by  a  guardian  ad  litem.     And 

(n)  Foster  V.  Hilliard,  1  Stoiy,  88;  security  of  one  wliose  circumstcances  are 
Whekiale  v.  Partridge,  5  Ves,  Jr.  396;  equivocal,  he  is  responsible  for  the  mo- 
Craig  w.  Leslie,  3  Wheat.  563,  577  ;  Pe-  nej'  lent.  —  Stem's  Appeal,  5  Whart. 
ter  y.  Beverly,  10  Peters,  532;  Hawlcy  472.  "Whenever  the  guardian  has  the 
V.  James,  5  Paige,  318-489;  Kane  v.  fund  and  disposes  of  it  to  another,  he 
Gott,  24  Wend.  660  ;  Reading  i).  Black-  must  do  it  with  strict  and  proper  caution, 
well,  1  Baldwin,  166.  The  above  cases  and  is  seldom  safe  unless  he  takes  secu- 
illustrate  the  general  principles  of  equi-  rity.''  Sergeant,  J.  Konigmacher  y.  Kim- 
table  conversion,  without  being  applied  mel,  1  Penn.  207  ;  Pirn  v.  Downing,  II 
exclusively  to  conversions  by  a  guar-  S.  &  II.  66 ;  Smith  v.  Smith,  4  Johns, 
dian  with  license  from'court.  Ch.  281. — But  he  is  bound  in  general 

(o)  Green  v.  Winter,  1  Johns.  Ch.  26;  ""'^  ^°  \'^°  !;^^'ff  ^^  common  pru- 

Church  V.  The  Marine  Insurance  Co.  '^''"f  ^^^'^It     V-  '^."'^"'^O"^  ^W?''^!'  \2 

1  Mason,  345;  Holridge  v.  Gillespie,  2  ^J^  ^-£17  '  ^y""'?'?',  '7  "'  ^^'"^"^^  ' 

Johns.  Ch.  30:  Davoue  v.  Fanning    2  lPenn-207.     He  is  hable  for  any  negli- 

Johns.    Ch.  252;    White  v.   Parker    8  f ''''':  ^^^^"l^' '':  ^^^^'f'  ^  McMidlan, 

Barb.  48;  Ringgold  v.  Ringgold,  1  H.  ?,t    l^S.-fetanlcy  s   Appeal    8   Ban-, 

&  G.  11 ;  RogeTs  v.  Rogers,  f  Hopkins,  ^Sl-     Although  expressly  authorized  to 

Ch.  515  ;  Lovell  v.  Briggs,  2  N.  H.  218  ;  J,"^.^^''  ^'^"  ''"^''^  *,."'?"7,'"  ."'''"''  '1°'.^' 

Sparhawk  v.  Allen,  1  Foster  9. -The  ^?  ^'  personally  liable  it  he  invests  it  m 

guardian  is  not  entitled  to  compensation  fe'"  °'Ino  ^'^^me.- Worrell  s  Appeal,   9 

for  services  rendered  before  his  appoint-  Barr  508.     He  was  held  liable  for  the 

ment.     Clowes  v.  Van  Antwerp,  4  Barb.  '^^'^  '  '""""^^^  invested  in  the  stock  of  a 

S.  C.  416.  navigation  company,  in  good  credit  at 

the  time,  and  paying  large  dividends  for 

(p)  Bietterich  v.  Heft,  5  Barr,  87.     If  a  long  time  afterwards. 

he  lends  money  on  the  mere  personal  (q)  See  ante,  p.  103,*'  note  (b.) 

VOL.  I.                                   11  [-121] 


116  THE  LAW  OF  CONTKACTS.  [BOOK  I. 

the  courts  have  gone  so  far  as  to  set  aside  transactions  which 
took  place  soon  after  the  ward  came  of  age,  and  which  were 
beneficial  only  to  the  former  guardian,  on  the  presumption 
that  undue  influence  was  used,  and  on  the  ground  of  public 
utility  and  policy,  (r) 

A  guardian  cannot,  by  his  own  contract,  bind  the  person 
or  estate  of  his  ward ;  (s)  but  if  he  promise  on  a  sufficient  con- 
sideration to  pay  the  debt  of  his  ward,  he  is  personally  bound 
by  his  promise,  although  he  expressly  promises  as  guar- 
dian, (t)  And  it  is  a  sufficient  consideration  if  such  promise 
discharge  the  debt  of  the  ward.  And  a  guardian  who  thus 
discharges  the  debt  of  his  ward  may  lawfully  indemnify  him- 
self out  of  the  ward's  estate,  or  if  he  be  discharged  from  his 
guardianship,  he  may  have  an  action  against  the  ward  for 
money  paid  for  his  use.  (ii)  An  action  will  not  lie  against 
a  guardian  on  a  contract  made  by  the  ward,  but  must  be 
brought  against  the  ward,  and  may  be  defended  by  the  guar- 
dian, (r) 

(r)  Archer  r.  Hudson,  7  Beavan.  551 ;  (»)  Thacher  v.  Dinsmore,   5  Mass. 

Gale  V.  AVells,  12  Barb.  84.            '  299;  Forster  v.  Fuller,  6  Mass.  58. 

(s)  Thacher  r.  Dinsmore,  5  Mass.  300;  (i-)  Brown  v.  Chase,   4  Mass.  436; 

Jones  v.  Brewer,  1  Pick.  314.  Thacher  v.   Dinsmore,    5   Mass.   299  ; 

(t)  Forster  i-.  Fuller,  6  Mass.  58.  Ex  parte  Leighton,  14  Mass.  207. 

[122] 


CH.  X.] 


CORPORATIONS. 


117 


CHAPTER  X. 


CORPORATIONS. 


A  CORPORATION  aggregate  is,  in  law,  a  person ;  (lo)  and  it 
was  an  established  principle  of  the  common  law,  that  corpo- 
rations aggregate  could  act  only  under  their  common  seal ; 
(x)  but  to  this  principle  there  were  always  many  exceptions. 
These  exceptions  arose  at  first  from  necessity,  and  were  limit- 
ed by  necessity.  As  where  cattle  were  to  be  distrained  da- 
mage feasant,  and  they  might  escape  before  the  seal  could 
be  affixed.  (?/)  But  it  was  held  that  the  appointment  of  a 
bailiff  to  seize  for  the  use  of  a  corporation,  goods  forfeited  to 
the  corporation,  must  be  by  deed,  (z)  A  corporation  is  liable 
for  the  tortious  acts  of  its  agent,  though  he  were  not  appointed 
under  seal,  (a)  The  exception  was  afterwards  extended  to 
all  matters  of  daily  or  frequent  exigency  or  convenience,  and 


(w)  See  the  great  case  of  the  Louis- 
ville and  Charleston  E.  K.  Co.  v.  Let- 
son,  2  How.  497,  where  it  was  decided 
by  the  Supreme  Court  that  a  corpora- 
tion created  by  a  State,  and  doing  busi- 
ness within  the  territory  of  such  State, 
though  it  have  members  who  are  citi- 
zens of  other  States,  is  to  be  treated  in 
the  United  States  courts  as  a  citizen  of 
that  State.  —  By  an  act  incorporating  a 
railway  company,  no  action  was  to  be 
brought  against  any  person  for  any 
thing  done  in  pursuance  of  the  act,  with- 
out twenty  days'  notice  given  to  the  in- 
tended defendant :  Held,  that  the  word 
person  included  the  company,  and  that 
they  were  entitled  to  notice  upon  being 
sued  for  obstructing  a  way  in  canying 
the  act  into  effect.  Bovd  v.  Croydon, 
K.  Co.,  4  Bing,  N.  C.  669. 

(x)  1  Blackstone's  Coram.  475. — 
Yet  a  corporation  might  do  an  act  upo7i 
record  without  seal.  The  Mayor  of 
Thetford's  case,  1  Salk.  192. 

(y)  Manby  v.  Long,  3  Lev.  1G7  ;  Bro. 
Corporations,  pi.  2,  47  ;  Dean  and  Chap- 
ter of  Windsor  v.  Cover,  2  Saund.  30.5  ; 
Plow.  91.  And  so  it  seems  the  appoint- 
ment of  a  bailiff  to  distrain  for  rent  did 


not  need  to  be  by  deed.  Cary  r.  Mat- 
thews, 1  Salk.  191  ;  Taunton,  J.,  Smith 
V.  Birmingham  Gas  Co.  1  Ad.  &  El.  530. 
—  But  a  corporation  cannot,  except  by 
their  seal,  empower  one  to  enter  on  their 
behalf  for  condition  broken  ;  and  this 
though  the  estate  be  only  for  years. 
Dumper  v.  Symms,  1  Rol.  Abr.  Corpo- 
rations (K.) 

(z)  Horn  V.  Ivy,  1  Vent.  47,  1  Mod. 
18,2  Keb.  567. 

(a)  Eastern  Counties  Eailway  Co.  v. 
Broom,  2  E.  L.  &  E.  406;  Watson  v. 
Bennett,  12  Barb.  196  ;  Burton  v.  Phila- 
delphia &c.  Eailroad,  4  Harring.  252  ; 
Johnson  v.  Municipality,  5  Louis.  Ann. 
100  ;  Goodspeed  v.  East  Iladdam  Bank, 
22  Conn.  530.  Especially  if  the  act  done 
was  an  ordinary  service,  such  as  would 
not  be  held  under  other  circumstances 
to  require  an  authority  under  seal.  Smith 
V.  Birmingham  Gas  Co.  1  A.  &  E.  526, 
3  N.  &  Mann.  771 ;  Yarborough  v.  The 
Bank  of  England,  16  East,  6.  — And  a 
corporation, "like  any  other  principal,  is 
liable  for  acts  of  its  agent  incidental 
to  an  authority  duly  delegated.  Ken- 
nedy V.  Baltimore  Ins.  Co.  3  H.  &  Johns. 
367. 

[123] 


118* 


THE   LAW    OF   CONTRACTS. 


[look  I. 


of  no  especial  importance,  (h)  In  this  country,  the  old  rule 
*has  almost  if  not  entirely  disappeared,  (c)  But  in  England 
it  seems  to  remain  in  some  force,  {d)  A  contract  of  a  corpo- 
ration as  of  an  individual,  may  be  implied  from  the  acts  of 
the  corporation,  or  of  their  authorized  agents,  (e)  In  gene- 
ral, if  a  person  not  duly  authorized  make  a  contract  oa  be- 
half of  a  corporation,  and  the  corporation  take  and  hold  the 
benefit  derived  from  such  contract,  it  is  estopped  from  deny- 
ing the  authority  of  the  agent.  (/) 

The  question  of  execution  appears  to  stand  upon  some- 
what different  ground  from  that  of  authority  ;  for  while  a 
corporation  is  generally  estopped  from  denying  that  a  contract 
or  an  instrument  was  made  by  its  authority,  if  it  receive  and 
hold  the  beneficial  result  of  the  contract  or  the  instrument,  as 
the  price  for  property  sold,  or  the  like,  it  may,  or  its  creditors 
may,  deny  that  the  instrument  was  legally  executed,  even  if 
the  authority  were  certainly  possessed.  Thus,  if  a  convey- 
ance purporting  to  be  the  conveyance  of  a  corporation,  made 
by  one  authorized  to  make  it  for  them,  be  in  fact  executed 


(b)  Gibson  v.  East  India  Co.  5  Binj^. 
N.  C.  262,  270 ;  Lord  Denman,  C.  J., 
Church  t'.Lnperial  Gas  Co.,  6  Ad.  &  El. 
846.     See  Bro.  Corporations,  pL  49. 

(c)  The  Bank  of  Columbia  v.  Patter- 
son, 7  Cranch,  299  ;  Bank  of  the  Uni- 
ted States  V.  Danbrid.trc,  12  Wheat,  64; 
Danforth  v.  Schoharie  Turnpike  Co., 
12  Johns.  227;  Commercial  Bank  of 
Buffalo  V.  Kortright,  22  Wend.  348  ; 
American  Ins.  Co.  ik  Oaklej'.  9  Paige, 
496  ;  Parker,  C.  J.,  Fourth  School 
District  in  Rumford  v.  Wood,  13  Mass. 
199  ;  Proprietors  of  Canal  Bridge  v. 
Gordon,  1  Pick.  297 ;  Chestnut  Hill 
Turnpilvc  v.  Ruttcr,  4  S.  &  Rawle,  16  ; 
Union  Bank  of  Maryland  v.  Kidgely, 

I  H.  &  Gill,  324  ;  Legrand  v.  Hamp- 
den Sydney  College,  5  Munf.  324. 

(f?)  Rolfe,  B.,  Mayor  of  Ludlow  v. 
Charlton,  6  M.  &  W.  823;.  Gibson  v. 
East  India  Company,  5  Bing.  N.  C. 
275:  Lord  Demnan,  C.  J.,  Church  v. 
Imperial  Gas  Co.,  6  Ad.  &  El.  861; 
Williams  v.  Chester  &  Holvhead  Rail- 
way, 5  E.  L.  &  E.497  ;  Diggle  v.  Lon- 
don &  Blackwell  Railway,  5  ExcJi.  442 ; 
Clark  V.  Guardians  of  Cuckficld  Union, 

II  E.  L.  &  E.  442.    But  see  Denton  v. 

[124] 


East  Anglian  Railway  Co.  3  Carr.  & 
Kir.  17. 

(e)  Smitli  V.  Proprietors,  &c.,  8  Pick. 
178;  Kennedy  ?'.  Baltimore  Ins.  Co.,  3 
H.  &  Johns.  3G7  ;  Trundy  v.  Farrar, 
32  Maine,  225 ;  Ross  v.  City  of  Madi- 
son, 1  Cart.  (Ind.)  281  ;  Seagraves 
V.  Citv  of  Alton,  13  111.  366.  —Beverley 
V.  Lincoln  Gas  Co.,  6  Ad.  &  El.  829 ; 
where  the  judgment  of  the  court  of 
Queen's  Bench  was  delivered  by  Pat- 
teson,  J.,  in  an  elaborate  opinion.  And 
in  Church  v.  Imperial  Gas  Company,  6 
Ad.  &  El.  846,  the  same  court  held  that 
a  corporation,  created  for  the  purpose  of 
supplying  gas,  might  maintain  assump- 
sit for  the  breach  of  a  contract  by  the 
defendant  to  accept  gas  from  year  to 
year,  at  a  certain  pi'ice  per  annum,  the 
consideration  being  alleged  to  be  the 
promise  of  the  corporation  to  furnish  it 
at  that  price  —  such  promise  by  the 
corporation,  though  not  under  seal, 
being  valid,  and  a  good  consideration. 

(f)  Episcopal  Charitable  Society  v. 
Episcopal  Church,  1  Pick.  372  ;  Hay- 
ward  V.  The  Pilgrim  Society,  21  Pick. 
270  ;  Randall  v.  Van  Vechten,  19  Johns. 
60.  And  see  Foster  v.  Essex  Bank,  17 
Mass.  479. 


CH.  X.] 


CORPORATIONS. 


*119 


by  the  attorney  as  his  own  deed,  it  is  not  the  deed  of  the  cor- 
poration, although  it  was  intended  to  be  so,  and  the  at- 
torney had  full  authority  to  make  it  so.  And  if  the  deed  be 
written  throughout  as  the  deed  of  the  corporation,  and  the 
attorney  when  executing  it  declares  that  he  executes  it  on 
*  behalf  of  the  company,  but  says,  "in  witness  whereof  I  set 
my  hand  and  seal^''  this  is  his  deed  only,  and  does  not  pass 
the  land  of  the  corporation,  {g)     If,  however,  it  was  only  a 


{g)  Brinley  v.  Mnnn,  2  Cash.  337. 
The  material  parts  of  the  deed  in  this 
case  were  as  follows :  —  "  Know  all  men, 
&c.  that  the  New  England  Silk  Compa- 
ny, a  corporation  legally  established,  by 
C.  C,  their  treasurer,  in  consideration, 
&e.  do  hereby  give,  grant,  &c."  "  In 
witness  whereof,  I,  the  said  C.  C,  in  be- 
half of  said  Company  and  as  their  trea- 
surer, have  hereunto  set  my  hand  and 
seal."  The  certificate  of  acknowledge- 
ment stated  that  "  C.  C,  treasurer,  &c. 
acknowledged  the  above  instrument  to 
be  his  free  act  and  deed."  The  court 
held  that  this  was  not  the  deed  of  the 
corporation.  See  also  Combe's  case,  9 
Co.  R.  76,  b ;  Frontin  v.  Small,  2  Stra. 
705.  No  abler  exposition  of  the  doc- 
trine of  deeds  by  attorney  is  to  be  found 
in  the  books  than  that  of  Lord  Chief 
Baron  Gilbert.,  Bac.  Abr.  Leases,  J.  10: 
"If  one  hath  power,  by  virtue  of  a  letter 
of  attorney,  to  make  leases  for  years 
generally  by  indenture,  the  attorney 
ought  to  make  them  in  the  name  and 
style  of  his  master,  and  not  in  his  own 
name:  for  the  letter  of  attorney  gives 
him  no  interest  or  estate  in  the  lands, 
but  only  an  authority  to  supply  the  ab- 
sence of  his  master  by  standing  in  his 
stead,  which  he  can  no  otherwise  do 
than  by  using  his  name,  and  making 
them  just  in  the  same  manner  and  style 
as  his  master  would  do  if  he  were  pre- 
sent: for  if  he  should  make  them  in  his 
own  name,  though  he  added  also,  by 
virtue  of  the  letter  of  attorney  to  hini 
made  for  that  purpose ;  yet  such  leases 
seem  to  be  void,  because  the  indenture 
being  made  in  his  name,  must  pass  the 
interest  and  lease  from  him,  or  it  can 
pass  it  from  nobody :  it  cannot  pass  it 
from  the  master  immediately,  because 
he  is  no  party ;  and  it  cannot  pass  it 
from  the  attorney  at  all,  because  he  has 
nothing  in  the  lands  ;  and  then  his  add- 
ing hy  virtue  of  the  letter  of  attorney  will 
not  help  it,  bocausc  that  letter  of  attor- 

11* 


ney  made  over  no  estate  or  interest  in 
the  land  to  him,  and,  consequently,  he 
cannot,  by  virtue  thereof,  convey  over 
any  to  another.  Neither  can  such  inte- 
rest pass  from  the  master  immediately, 
or  through  the  attorney ;  for  then  the 
same  indenture  must  have  this  strange 
effect,  at  one  and  the  same  instant  to 
draw  out  the  interest  from  the  master 
to  the  attorney,  and  from  the  attorney 
to  the  lessee,  which  certainly  it  cannot 
do ;  and  therefore  all  such  leases  made 
in  that  manner  seem  to  be  absolutely 
void,  and  not  good,  even  by  estoppel, 
against  the  attorney,  because  they  pre- 
tend to  be  made  not  in  his  own  name 
al)solutely.  but  in  the  name  of  another, 
by  virtue  of  an  authoritj'^  which  is  not 
pursued.  This  case  therefore  of  mak- 
ing leases  liy  a  letter  of  attorney  seems 
to  differ  fiom  that  of  a  surrender  of  a 
copyhold,  or  of  livery  of  seizin  of  a  free- 
hold, by  letter  of  attorney ;  for  in  those 
cases  when  they  say.  We  A.  and  B  as 
attorneys  of  C,  or  by  virtue  of  a  letter 
of  attorney  from  C,  of  such  a  date. 
^•c,  do  surrender,  ^-c.,  or  deliver  to  you 
seizin  of  such  lands ;  these  are  good  in 
this  manner,  because  they  are  only  mi- 
nisterial ceremonies  or  transitory  acts 
in  pais,  the  one  to  be  done  by  liolding 
the  court  rod,  and  the  other  by  deliver- 
ing a  turf  or  twig  ;  and  when  they  do 
them  as  attorneys,  or  by  virtue  of  a  let- 
ter of  attorney  from  tlieir  master,  the 
law  pronounces  thereupon  as  if  they 
were  actually  done  by  the  master  him- 
self, and  carries  the  possession  accord- 
ingly ;  but  in  a  lease  for  years  it  is 
quite  otherwise,  for  the  indenture,  or 
deed,  alone  convey  the  interest,  and  arc 
the  very  essence  of  the  lease,  both  as  to 
the  passing  it  out  of  the  lessor  at  first, 
and  its  subsistence  in  the  lessee  after- 
wards; the  very  indenture,  or  deed  itself, 
is  the  conveyance,  without  any  subse- 
quent construction,  or  operation  of  law 
thereupon ;    and   therefore   it  must   be 

[125] 


120  THE   LAAV   OF   CONTRACTS.  [BOOK  I. 

simple  contract  which  was  executed  in  this  way,  it  might  be 
inferred  from  the  general  principles  of  the  law  of  agency,  that 
it  would  be  valid  as  the  contract  of  the  corporation  ;  for  it 
would  be  a  contract  made  by  one  as  the  agent  of  another,  and 
containing  the  express  declaration  that  it  was  so  made. 

A  corporation  may  employ  one  of  its  members  as  its  agent, 
and  the  same  person,  while  such  agent,  may  be  also  an  agent 
for  the  other  contracting  party,  and  sign  for  him  the  memo- 
randum required  by  the  Statute  of  Frauds,  (h) 

Corporations  authorized  by  their  charter  to  act  in  a  pre- 
scribed manner  may  by  practice  and  usage  make  themselves 
liable  on  contracts  entered  into  in  a  different  way.  (i)  But 
it  has  been  decided  that  corporations  cannot  exceed  the 
powers  given  in  their  charters  and  make  contracts  not  inci- 
dental or  ancillary  to  the  exercise  of  those  powers,  and  that 
they  are  not  estopped  from  setting  up  their  own  want  of 
authority  to  make  such  contracts  by  the  fact  that  they  have 
been  in  the  habit  of  entering  into  and  fulfilling  similar  en- 
gagements, for  a  long  period,  {ii)  This  question  may  be 
regarded,  however,  as  not  yet  fully  determined. 

In  the  absence  of  special  provisions  in  the  charter,  or  of  by- 
laws lawfully  made,  the  corporate  acts  of  a  corporation  are 
the  acts  of  a  majority  at  a  regular  meeting,  whether  those 
present  were  or  were  not  a  majority  of  the  members  of  the 
corporation,  (j)  And  these  corporate  acts  are  binding  upon 
all  the  members,  (k)     It  does  not  seem  to  have  been  positively 

made  in  the  name  and  style  of  him  who  (i)  Witte  v.  Derby  Fishing  Compa- 

has  such  interest  to  convey,  and  not  in  ny,  2  Conn.  R.  260 ;  Bulkley  v.  Derby 

the   name   of  the   attorney,   who   has  Fishing  Company,  2  Conn.  252. 

nothing  therein.    But  in  the  conclusion  (ii)  Governor  and  Company  of  Cop- 

of  such  lease  it  is  proper  to  say,  In  ivit-  per  Miners  v.  Fox,  3  E.  L.  &  E.  420 ; 

ness  whereof  A.  B.  of  such  a  place,  Sj-c,  in  Hood  v.  New  York  and  New  Haven 

pursuance  of  a  letter  of  attorney  hereunto  an-  Railroad  Co.,  22  Conn.  502. 

nexed,  hearing  date  such  a  day,  hath  put  the  (j)  Attorney- General  v.  Davy,  2  Atk. 

hand  and  seal  of  the  master,  and  so  write  212. 

the  master's  name,  and  deliver  it  as  the  (t)  Rex  v.  Varlo,  Cowp.  248 ;  Field 

act  and  deed  of  the  master,  in  which  v.  Field,  9  Wend.  394. — But  where  the 

last  ceremony  of  delivering  it  in   the  act  is  to  be  done  by  a  body  within  the 

name  of  the  master  by  such  attorney,  corporation,  and  consisting  of  a  definite 

this  exactly  agrees  with  the  ceremony  number,  a  majority  of  that  body  must  at- 

of  surrendering  by  the  rod,  or  making  tend,  and  then  a  majority  of  those  thus 

livery  by  a  turf  or  twig,  by  the  attorney,  assembled  will  bind  theVest.     The  King 

in  the  name  or  as  attorney  of  his  master,  v.  Bellringer  4  T.  R.  810 ;  The  King  v- 

(h)  Stoddert  v.  Vestry  of  Port  To-  Miller,  6  t.  R.  268 ;  The  ffing  w.  Bower, 

bacco  Parish,  2  G.  &  Johns.  227.  1  B.  &  Cress.  492  ;  Ex  parte  Willcocks, 

[126] 


CH.   X.]  CORPORATIONS.  -120 

decided,  whether  this  must  be  a  majority  of  all  the  members 
present,  or  may  be  only  a  majority  of  all  present  and  voting. 
But  we  think  that  it  may  be  the  latter.  Otherwise,  persons 
not  voting  would  be  counted  as  voting  against  the  measure. 
As  a  majority  of  all  present  binds  all  the  members,  because 
all  the  members  might  be  present,  and  perhaps  because  it  is 
their  duty  to  be  present,  so  a  majority  of  those  present  and 
voting  should  have  the  same  force,  because  it  is  within  the 
right  and  power  and  perhaps  the  duty  of  all  present  to  vote, 
and  so  to  express  their  dissent  from  any  measure  which  they 
do  not  approve. 

7  Cowen,  402. — The  rule   is  perhaps  7  Bing.  1. — In  a  corporation  composed 

the  same  where  the  act  is  to  be  done  by  of  different  classes,  a  majority  of  each 

the  corporation,  when  that  consists  of  a  class  must  consent  before  the  charter 

definite  number.     Lord  Kenyon,  Rex  v.  can  be  altered,  if  there  be  no  provision 

Bellringer,  4  T.  R.  822.    At  common  in  the   charter   respecting   alterations, 

law,  the  corporation  may  delegate  to  a  Case  of  St.  Mary's   Church,   7    S.   & 

select  body  in  itself  its  power  of  electing  Rawle,  517. 
members  or  officers.    Rex  v.  Westwood, 

[127] 


121  THE  LAW  OF  CONTRACTS.  [BOOK  I. 


CHAPTER  XL 


JOINT-STOCK    COMPANIES. 

In  England  the  statute  of  7  &  8  Victoria,  ch.  110,  has  the 
effect  of  making  joint-stock  companies,  formed  and  registered 
in  a  certain  way,  quasi-corporations.  In  this  country,  wher- 
ever there  are  no  similar  statutory  provisions,  joint-stock  com- 
panies are  rather  to  be  regarded  as  partnerships.  The  Eng- 
lish statute  above  referred  to  defines  a  joint-stock  company 
as  "  a  partnership  whereof  the  capital  is  divided  or  agreed  to 
be  divided  into  shares,  and  so  as  to  be  transferable  without 
the  express  consent  of  all  the  copartners."  (/)  And  this  defi- 
nition may  be  considered  as  applicable  to  such  companies  in 
this  country.  Although  a  joint-stock  company  is  certainly 
not  a  corporation,  yet  it  differs  in  some  respects  from  a  com- 
mon partnership.  A  member  of  a  partnership  may  assign 
his  interest  in  the  property  of  the  firm ;  but  the  assignee  does 
not  become  a  partner  unless  the  other  copartners  choose  to 
admit  him  ;  and  the  interest  so  assigned  being  subject  to  all 
the  debts  of  the  partnership,  it  may  be  withheld  by  the  part- 
ners for  the  purpose  of  settling  the  affairs  of  the  firm,  and  un- 
til it  is  certain  that  there  is  a  balance  belonging  to  the  part- 
ners, and  until  the  share  belonging  to  the  assigning  partner 
may,  in  whole  or  in  part,  be  paid  over  to  his  assignee  without 
injury  to  the  creditors  of  the  firm,  [m)     But  in  a  joint-stock 

(?)  7  &  8  Vict.  c.  no,  sec.  2.  The  The  Bubble  Act,  (6  G.  1,  c.  18,)  made 
same  section  proceeds  to  inchide  also  during  the  excitement  produced  by  the 
within  the  term  Joint-Stock  Company,  South  Sea  Company,  having  been  re- 
all  Life,  Fire,  and  Marine  Insurance  pealed  by  the  statute  6  G.  4,  c.  91,  it 
companies,  and  every  partnership  con-  was  held  in  Garrard  v.  Hardey,  5  M.  & 
sisting  of  more  than  twenty-five  mem-  Gran.  471,  that  the  formation  of  a  com- 
bers, pany,    the   stock   in   which   should    be 

(m)  See  Pratt  1'.  Hutchinson,  15  East,  transferable,  was  not  an  offence  at  com- 

511;  Hex  v.  Webb,   14  East,  406;  Jo-  mon   law.     And  the  doctrine  was  re- 

sephs  V.  Pebrer,  3  B.  &  C.  039 ;  Fox  v.  afiirmed  in  Harrison  v.  Heathorn,  6  M. 

Clifton,  9  Bing.  115  ;  6  Bing.  776,  S.  C.  &  Gran.  81. 

[128] 


CH.  XI.]  JOINT   STOCK    COMPANIES.  *122 

company  provision  is  made  beforehand  for  such  transfer,  and 
this  is  a  principal  object  and  effect  of  the  division  into  shares. 

*In  other  respects  the  differences  between  the  law  of  joint 
stock  companies  and  that  of  partnerships,  (which  is  our  next 
topic,)  are  not  very  many  nor  very  important,  (mm) 

Some  question  has  arisen  as  to  the  power  of  a  managing 
committee  to  pledge  the  credit  of  the  members  of  a  society. 
And  it  is  held  that  this  must  depend  upon  the  rules  and  by- 
laws of  the  society,  (n)  Such  a  case  is  not  likened  to  that 
of  a  partnership,  but  is  governed  by  the  law  of  principal  and 
agent,  (o)  Nor  has  a  member  of  a  joint-stock  company  any 
implied  authority  to  accept  bills  in  the  name  of  the  directors 
or  of  the  company.  (/?)  The  effect  of  becoming  a  subscriber 
to  an  intended  company,  in  regard  to  the  creation  of  a 
partnership  between  the  members,  as  well  among  them- 
selves as  in  reference  to  the  public,  has  been  before  the  courts ; 
and  it  has  been  held  that  an  application  for  shares  and  pay- 
ment of  the  first  deposit  did  not  suffice  to  constitute  one  a 
partner,  where  he  had  not  otherwise  interfered  in  the  con- 
cern ;  (q)  and  that  the  insertion  of  his  name  by  the  secre- 
tary of  the  company  in  a  book  containing  a  list  of  the 
members  was  not  a  holding  of  himself  out  to  the  public  as  a 
partner,  (r)  And  this  on  the  ground  that  such  person  does 
not  thereby  acquire  a  right  to  share  in  the  profits. 

But  though  there  be  some  want  of  the  necessary  formalities 
or  acts  of  a  party  to  make  himself  legally  a  member,  yet  if  he 
interpose  and  act  as  a  member  or  director,  (s)  attend  meetings 
accept  office,  or  otherwise  give  himself  out  to  the  public  as 
such,  either  expressly,  or  by  sufficient  implication,  then  he 
will  make  himself  liable  as  a  partner,  [t)     And  this  even  if 

(mm)  Sec  remarks  of  Lord  Campbell,  Bing.  776.     Same  case  sent  down  for  a 

in  Burness   i\  Pcnuell,  2  Ho.  of  Lords  third  trial,  9  Bing.  115.    And  see  Bourne 

Cases,  497.  v.  Freetli,  9  B.  &  Cress.  G32. 

00  Fiemyng  v.  Hector,  2  M.  &  W.  (?•)  Fox  v.  Clifton,   4  M.  &  Payne, 

1 72.    And  see  Reynell  v.  Lewis,  15  M.  &  676. 

W.  517.  {s)  Lord  Denman,  Bell  v.  Francis,  9 

{o)  Ibid.  C.  &  P.  66. 

(/*)  Bramah  r.  Roberts,  3  Bing.  N.  C.  (t)   Douhleday  v.   Muskett,    7   Bing. 

963;Dickinsoni'.Valpy,  10  B.  &  Cress.  110;  Trcdwen  v.  Bourne,  6  M.  &  W. 

128;   Steele  v.  Harmer,   14  M.  &  W.  461;  Maudslay  v.  Le  Blanc,  2  C.  &  P. 

^31.  409,  note  ;  Braithwaite  v.  Skoficld,  9  B. 

(7)  Pitchford  v.  Davis,  5  M.&  W.  2;  &  C.  401.     And  see  Harrison  v.  Hca- 

Fox  V.  Clifton,  4  M.  &  Payne,  676,  6  thorn,  6  Scott,  N.  R.  735. 

[129] 


123* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


the  company  originated  in  fraud,  to  which  he  is  not  a  party, 
nor  privy  ;  (ii)  or  if  a  deed  expressly  required  by  the  printed 
*prospectus  to  make  him  a  partner  has  not  been  signed  by 
him;  (y)  or  even  if  the  company  has  never  been  regularly 
and  finally  formed ;  {iv)  or  has  been  abandoned ;  [x)  or  is 
insolvent,  [y) 

It  seems  that  a  member  of  such  a  company  may  sue  the 
company  for  work  and  labor  done,  and  money  expended  by 
him  in  their  behalf,  (c) 


(m)  Ellis  V.  Schmoeck,  5  Bing.  521 ; 
3  M.  &  P.  220,  S.  C. 

[v)  Maudslay  v.  Le  Blanc,  2  C.  &  P. 
409,  note.  And  see  Ellis  v.  Schmoeck, 
5  Bing.  521. 

(w)  Abbott,  C.  J.,  Keasley  v.  Codd,  2 
C.  &  P.  408,  n. 

[x]  Doubleday  v,  Muskett,  7  Bing. 
110. 

(y)  Keasley  v.  Codd,  2  C.  &  P.  408. 

\z)  Cai'den  v.  General  Cemetery  Co., 
5  Bing.  N.  C.  253.  But  it  is  to  be  ob- 
served that  this  was  so  held  with  refer- 
ence to  an  incorporated  joint  stock  com- 
pany; and  some  stress  was  laid  in  the 
decision  upon  the  particular  provisions 


of  the  act  of  incorporation.  And  see 
Perring  v.  Hone,  4  Bing.  28. — A  mem- 
ber of  a  joint-stock  company,  like  a 
member  of  an  ordinary  partnership, 
may  recover  compensation  for  service 
rendered  to  the  company  previous  to 
his  having  become  a  member  of  it. 
Lucas  V.  Beach,  1  M.  &  Gran.  417. 
In  general,  however,  an  action  cannot 
be  maintained  by  a  member  against  the 
company,  or  by  the  company  against 
a  member,  on  a  contract  between  him 
and  the  company.  Neale  v.  Turton,  4 
Bing.  149  ;  Wilson  v.  Curzon,  15  M.  & 
W.  532 ;  Holmes  v.  Higgins,  1  B.  &  C 
74. 


[130] 


CH.  XII.]  PARTNERSHIP.  124 


CHAPTER  XII. 

PARTNERSHIP. 

Sect.   I.  —  Wliat  constitutes  a  Partnership. 

A  PARTNERSHIP  exists  wheii  two  or  more  persons  combine 
their  property,  labor,  and  skill,  or  one  or  more  of  them,  in 
the  transaction  of  business,  for  their  common  profit. 

A  partnership  is  presumed  to  be  general  when  there  are  no 
stipulations,  or  no  evidence  from  the  course  of  business  to 
the  contrary.  But  it  may  be  created  for  a  specific  purpose, 
or  be  confined  by  the  parties  to  a  particular  line  of  business, 
or  even  a  single  transaction.  When  the  partnership  is  form- 
ed by  written  articles,  it  is  considered  as  beginning  at  the 
date  of  the  articles,  unless  they  contain  a  stipulation  to  the 
contrary,  [a) 

In  general,  persons  competent  to  transact  business  on  their 
own  account  may  enter  into  partnership;  the  disabilities  of 
coverture,  infancy,  and  the  like,  applying  equally  in  both 
cases.  But  interesting  questions  have  been  raised  as  to  the 
rights  and  liabilities  of  those  who  represent  infants.  The 
personal  liability  of  such  a  party  would  seem  to  depend  upon 
the  question  whether  he  has  claimed  and  exercised  the  right 
of  withdrawing  any  part  of  the  capital,  or  of  receiving  a  share 
of  the  profits.  Perhaps  if  he  had  by  agreement  the  right  to 
do  this,  and  moi'e  certainly  if  he  had  actually  withdrawn 

(a)  Williams  v.  Jones,  5  B.  &  Cr.  agreement,  which  was  not  to  take  effect 
108.  An  attorney  entered  in  a  writ-  till  the  person  to  be  received  was  ad- 
ten  contract,  whereby  he  agreed  to  take  mitted  as  attorney,  and  that  it  was 
into  partnership  in  his  business  a  person  therefore  void.  See  Dix  v.  Otis.  5 
who  had  not  then  been  admitted  as  at-  Pick.  38.  —  But  parties  may  agree  to 
tomey,  and  therefore  could  not  be  law-  form  a  partnership  at  some  future  time, 
fully  received.  No  time  being  express-  and  until  it  arrives  they  will  not  be 
ly  fixed  for  the  commencement  of  the  liable  as  partners,  unless  they  have 
partnership,  the  court  held  that  it  was  held  themselves  out  as  such.  Dick- 
an  agreement  for  a  present  partnership,  inson  v.  Valpy,  10  B.  &  C.  128  ;  Avery 
and  that  parol  evidence  was  not  admis-  v.  Lauve,  1  Louisiana  Annual  Eep. 
sible  to  show  that  it  was  a  conditional  457. 

[131] 


125 


THE  LAW   OF  CONTRACTS. 


BOOK  I. 


capital  or  profits,  he  would  be  held  personally  responsible  for 
the  debts  of  the  partnership,  (b) 

Usually,  the  partners  own  together  both  the  property  and 
the  profits  ;  but  there  may  be  a  partnership  in  the  profits  only. 
For  as  between  themselves  the  property  may  belong  wholly 
to  one  member  of  the  partnership,  although  it  is  bound  to 
third  parties  for  the  debts  of  the  firtn  ;  as  when  it  is  bought 
wholly  by  funds  of  one  partner,  and  the  other  is  to  use  only 
his  skill  and  labor  in  disposing  of  it,  for  a  share  of  the 
profits,  (c) 

SECTION  11. 
OF   THE   REAL   ESTATE    OF   A   PARTNERSHIP. 


All  kinds  of  property  may  be  held  in  partnership  ;  but  real 
estate  is  still  subject,  to  a  certain  extent,  to  the  rules  which 
govern  that  kind  of  property.  There  is  some  conflict,  and 
perhaps  uncertainty,  as  to  the  right  and  remedies  of  part- 
ners and  creditors  in  respect  to  real  property  which  belongs 
to  the  partnership,  both  in  England  and  in  this  country.  But 
we  consider  the  prevailing  and  the  just  rule  to  be,  that  when 
real  estate  is  purchased  with  partnership  funds,  for  partnership 


(6)  Barklie  v.  Scott,  1  Hudson  & 
Brooke,  83.  A.  invested  a  sum  of  mo- 
ney for  liis  infant  son  in  a  partnership 
on  its  formation,  and  it  was  stipulated, 
in  a  letter  written  by  the  other  partners 
of  the  house,  that  they  should  correctly 
account  with  A.,  as  the  trustee  of  liis 
son,  for  one  third  profit  of  his  son's  ca- 
pital, or  any  loss  that  might  accrue,  and 
be  governed  and  directed  by  his  advice 
in  all  matters  relative  to  the  business. 
Held,  that  this  letter  did  not  constitute 
A.  a  partner,  the  jury  having  found  that 
the  money  was  not  invested  by  A.  for 
his  own  benefit,  and  that  he  had  not  re- 
served to  himself  the  power  of  drawing 
out  the  principal  or  profits  as  trustee  for 
his  son,  nor  in  fact  drawn  any. 

(c)  So  where  a  broker,  employed  by 
a  merchant  to  purchase  goods,  with  the 
funds  of  the  merchant,  was  to  be  one 
third  interested  in  them,  and  not  to 
charge  commissions,  and  the  correspond- 
ence between  him  and  the  merchant  de- 
scribed the  transaction  as  a  joint  con- 

[132] 


cern,  the  broker  was  held  to  be  inter- 
ested as  a  partner  in  the  goods,  and 
could  pledge  the  whole  oftlicm.  Reid 
V.  Ilollinshead,  4  B.  &  Cr.  867.  Ahboit, 
C.  J.  "  Such  a  partnership  may  well 
exist,  although  the  whole  price  is  in  the 
first  instance  advanced  b}--  one  part- 
ner, the  other  contributing  his  time 
and  skill  and  security  in  the  selection 
and  purchase  of  the  commodities." — 
But  where  the  broker  merely  acts  as 
agent,  and  in  lieu  of  commissions  is  to 
receive  a  certain  proportion  of  the  pro- 
fits arising  from  the  sale,  and  bear  a  cer- 
tain proportion  of  the  losses,  the  proper- 
ty in  the  subject  of  the  sale  does  not  vest 
in  him  as  a  partner,  although  he  may  be 
liable  as  such  to  third  persons.  Smith 
V.  Watson,  2  B.  &  C.  401.  So  where 
(jne  partner  furnishes  capital,  and  the 
other  labor,  mutual  interest  in  the  pro- 
fits alone  will  not  render  the  latter  lia- 
ble to  the  former  for  contribution  for 
any  loss  of  capital  in  the  adventure. 
Hcran  v.  Hall,  1  B.  Monroe,  159. 


CH.  XII.] 


PARTNERSHIP. 


126 


purposes,  it  will  be  treated  as  partnership  property,  and  held 
like  personal  property,  chargeable  with  the  debts  of  the  firm, 
and  with  any  balance  which  may  be  due  from  one  partner  to 
the  other,  upon  the  winding  up  of  the  affairs  of  the  firm,  (d) 
But  it  seems  to  be  the  prevailing  rule  in  this  coiintry,  that 
as  between  the  personal  representative  and  the  heirs  of  a 
deceased  partner,  his  share  of  the  surplus  of  the  real  estate 


(c?)  Goodburn  v.  Stevens,  5  Gill,  1 ; 
Buclian  v.  Sumner,  2  Barbour,  Cli.  165, 
197-207,  where  several  leading  cases 
are  reviewed;  Buckley  v.  Buckley,  11 
Barb.  44;  Piatt  v.  Oliver,  3  McLean, 
27;  Rice  v.  Barnard,  20  Verm.  479; 
Ovcrholl's  Appeal,  12  Penn.  222;  Buck 
V.  Winn,  11  B.  Mon.  322;  Owens  v. 
Collins,  23  Ala.  837  ;  Cox  v.  McBur- 
ney,  2  Sandf.  561.  "  So  far  as  the 
partners  and  their  creditors  are  con- 
cerned, real  estate  belonging  to  the  part- 
nership is  treated  in  equity  as  personal 
property,  and  subjected  to  the  same 
general  rules."  Assistant  V.  C,  Dcl- 
monico  r.  Guiilaume,  2  Sandf.  Ch. 
336.  And  where  the  real  estate  is  pur- 
chased for  partnership  purposes  on  part- 
nership account,  it  is  immaterial  whe- 
ther the  purchase  i.s  made  in  the  name 
of  one  partner  or  of  all,  or  of  a  stran- 
ger. Boyers  v.  Elliott,  7  Humph.  204 ; 
Hoxie  V.  Carr,  1  Sumner,  182.  In  this 
last  case,  Stury,  J.,  says,  "A  ciuestion 
often  arises,  whether  real  estate,  pur- 
chased for  a  partnership,  is  to  be  deem- 
ed for  all  purposes  personal  estate  like 
other  effects.  That  it  is  so,  as  to  the 
payment  of  the  partnership  dclUs,  and 
adjustment  of  partnership  rights,  and 
winding  up  the  partnership  concerns,  is 
clear,  at  least  in  the  view  of  a  court  of 
equity.  But,  whether  it  becomes  per- 
sonal estate  as  between  the  executor  or 
administrator  of  a  deceased  partner  and 
his  heir  or  devisee,  is  quite  a  different 
question,  u]ion  which  learned  judges 
have  entered  opposite  opinions.  The 
whole  doctrine  as  between  such  claim- 
ants, must  turn  upon  the  presumed  in- 
tention of  the  deceased  partner  ;  whether 
byleaving  itin  the  state  of  beingrcal  pro- 
perty he  meant,  as  between  his  personal 
representatives  and  his  heirs  and  devi- 
sees, that  it  should  retain  its  true  and 
original  character;  or  wiiether,  having 
appropriated  it  as  partnership  property, 
it  should  assume  the  artificial  character 
belonging  to  the  other  personal  funds 
of  the  firm."  See  Sigourney  i\  Munn, 
VOL.  I.  12 


7  Conn.  11. — In  Buchan  v.  Sumner,  al- 
ready cited,  Chancellor  Walworth  states 
it  to  be  the  English  rule,  "  that  real 
estate  belonging  to  the  firm,  unless  there 
is  something  in  the  partnership  arti- 
cles to  give  it  a  different  direction,  is 
to  be  considered,  in  equity,  as  per- 
sonal property  ;  and  that  it  goes  to 
the  personal  representative  of  the  de- 
ceased partner,  who  was  beneficially  in- 
terested therein." — Wooldridge  v.  Wil- 
kins,  3  V.  E.  Howard,  372.  After  re- 
viewing Greene  v.  Greene,  1  Hamm. 
244,  and  Thornton  v.  Dixon,  3  Bro. 
Ch.  199,  the  court  s&j,  "The  result  of 
these  cases  we  take  to  be,  that  lands 
purchased  by  partners,  under  an  agree- 
ment that  they  shall  be  sold  for  the  be- 
nefit of  the  partnership,  will  be  regarded 
as  joint-stock,  and  will  bo  likewise  so 
considered,  though  there  be  no  agree- 
ment, if  there  be  such  an  application  or 
use  of  them  to  the  purposes  of  the  con- 
cern, as  evidences  an  original  under- 
standing of  the  parties  that  they  are  to 
be  treated  as  such,  and  not  as  an  estate 
in  common.''  See  Dver  v.  Clark,  5  Met. 
562.— See  West  v.  Skip.  1  Ves.  Sen. 
242 ;  Phillips  v.  Phillips,  1  M.  &  K  663. 
Sir  John  Leach,  M.  R.,  in  this  last  case 
said,  that  notwithstanding  older  autho- 
rities, he  considered  it  to  be  settled  that 
all  property,  whatever  might  be  its  na- 
ture, purchased  with  partnership  capi- 
tal for  the  purposes  of  the  partnership 
trade,  continued  to  be  partnership  capital, 
and  to  have  to  every  intent  the  quality 
of  personal  estate.  And  this  is  confirm- 
ed in  Broom  v.  Broom,  3  M.  &  K.  443. 
See  Pugh  v.  Currie,  5  Ala.  N.  S.  446. 
— In  Pierce  v.  Trigg,  10  Leigh,  427, 
Tucker,  P.,  after  reviewing  the  Virginia 
cases,  adds,  "Upon  the  whole  I  am 
of  opinion  that  the  late  English  cases 
propound  the  true  rule,  and  that  real 
estate,  purchased  with  partnership  funds 
and  for  partnership  purposes,  must  be 
regarded  as  partnership  stock,  and 
treated  as  personalty." 

[133] 


127' 


THE   LAW  OF   CONTRACTS. 


BOOK  I. 


of  the  partnership,  after  all  its  debts  are  paid,  and  the  equi- 
table claims  of  its  members  are  adjusted,  will  be  consider- 
ed and  treated  as  real  estate,  (dd)  It  has  been  held,  that 
*  the  real  estate  of  a  partnership  does  not  acquire  the  inci- 
dents or  liabilities  of  personal  estate,  unless  there  be  an  agree- 
ment of  the  partners  to  that  efiect ;  and  that  then  this  change 
in  the  legal  nature  of  the  property  results  from  this  agree- 
ment, (e)  but  we  doubt  the  accuracy  of  this  ruling  ;  unless  it 
is  admitted  that  such  agreement  may  be  inferred  from  the 
purchase  of  the  property  by  partnership  funds,  and  the  use 


[dd]  Goodwin  u.Kichardson,  11  Mass. 
469.  In  this  case  an  estate  was  mort- 
gaged to  two  partners,  who  acquired  an 
absolute  title  by  foreclosure,  and  the 
court  held  that  it  thereby  vested  in 
them  as  tenants  in  common,  and  on  the 
death  of  one  partner  was,  as  to  his 
moiety,  to  be  treated  as  his  separate 
estate.  See  Hoxie  v.  Carr,  1  Sumn. 
185,  where  Stoi-y,  J.,  says  that  this  de- 
cision "  turns  upon  a  mere  point  of 
local  law,  under  a  local  statute,  and 
does  not  dispose  of  the  equities  between 
the  parties  resulting  from  general  prin- 
ciples." In  Yeatman  v.  Woods,  6  Yerg. 
20,  it  was  held  that  real  estate  held  by 
partners,  for  partnership  purposes,  de- 
scends and  vests  in  the  heir  at  law  of 
a  deceased  partner,  as  real  estate  in 
other  cases.  In  Deloneyr.  Hutcheson, 
2  Rand.  183,  it  is  said  that  "  the  survi- 
ving partner,  if  he  be  a  creditor,  can 
have  no  other  remedy  against  the  real 
estate  than  any  other  creditor  can  have." 
In  Lawrence  v.  Taylor,  5  Hill,  111,  it  is 
said,  "  Out  of  the  court  of  chancery, 
real  estate,  though  belonging  to  part- 
ners and  employed  in  the  partnership 
business  —  the  title  standing  in  their 
joint  names  —  is  deemed  to  be  holden 
by  them  as  tenants  in  common,  or  joint 
tenants  for  all  purposes." 

(c)  In  Coles  v.  Coles,  15  Johns.  159; 
Thornton  v.  Dixon,  3  Brown.  Ch.  R. 
199;  Bell  v.  Phynn,  7  Ves.  453;  Bal- 
niain  v.  Shore,  9  Ves.  500,  language  is 
used  which  might  have  this  interpreta- 
tion. In  Smith  r.  Jackson,  2  Edw.  Ch. 
28,  the  Vice-Chancellor  said,  "If  at  the 
time  of  forming  the  partnership,  the 
parties  agree  to  invest  a  part  of  their 
capital  in  the  purchase  of  real  estate  for 
partnership  purposes,  or  should  at  any 
time  afterwards  find  it  expedient  to  do 
so  and  agree  between  themselves  that, 
[134] 


upon  the  dissolution,  the  real  as  well  as 
personal  estate  shall  be  sold  and  turned 
into  money,  for  the  purpose  of  paying 
the  partnership  debts  and  closing  their 
joint  concerns,  there  the  court  of  Chan- 
cery, acting  upon  the  agreement,  and 
considering  that  as  done  which  was 
agreed  to  be  executed,  is  warranted  in 
regarding  the  whole  as  personalty,  either 
in  reference  to  the  claims  of  creditors, 
or  the  rights  of  the  heir  or  next  of  kia 

of  a  deceased  partner But 

if  a  purchase  be  made  and  a  convey- 
ance taken  to  partners  as  tenants  in 
common,  without  any  agreement  to 
consider  it  as  stock,  although  it  be  paid 
for  out  of  their  joint  fund,  and  to  be 
used  for  partnership  purposes,  I  am  of 
opinion  it  must  still  be  deemed  real 
estate."  Eipley  v.  AVaterworth,  7  Ves. 
425.  (1802.)  Lord  Eklon  in  this  case 
held  to  the  efiect  that  if  an  intention  to 
convert  the  real  property  of  the  partner- 
ship can  be  gathered  from  the  general 
tenor  of  the  partnership  deed,  coupled 
with  the  nature  of  the  partnership  deal- 
ings, that  intention  must  prevail  to  the 
full  extent  of  converting  the  real  pro- 
perty, as  between  the  real  and  personal 
representatives  of  the  deceased  partner; 
although  the  property  might  not  have 
been  purchased  with  partnership  funds, 
and  no  conversion  might  be  necessary 
for  the  payment  of  the  partnership 
debts.  Collyer,  Part.  sect.  142  ;  Selkrig 
V.  Davies,  2  Dow,  242.  (1814.)  Lord 
Eldon.  "  My  own  individual  opinion 
is,  that  all  property  involved  in  a  part- 
nership concern  ought  to  he  considered 
as  personal."  See  also  the  judgment  of 
Lord  Eldon  in  Crawshay  v.  Maule,  1 
Swanston,  521,  and  Townsend  v.  De- 
vaynes,  1  Montague  on  Partnership, 
App.,  note  (2  A.) 


CH.  XII.] 


PARTNERSHIP. 


128 


of  it  for  partnership  purposes.  It  seems  that  improvements 
made  with  partnership  funds  on  real  estate  belonging  to  one 
*  of  the  partners,  will  be  treated  as  the  personal  property  of 
the  partnership.  (/) 

The  widow  has  her  dower  in  the  estate  after  the  debts  are 
paid,  but  not  until  then,  (g)  Although  the  legal  title  is 
protected,  the  party  having  such  title  is  held,  if  necessary,  as 
trustee  for  partnership  purposes,  or  for  the  surviving  partner. 
And  if  a  partner  buys  lands  out  of  partnership  funds,  and 
takes  title  to  himself,  he  may  be  held  as  trustee  for  the  part- 
nership, (h)      It  is   to   be  remembered,   however,  as  before 


{/)  Averill  v.  Loucks,  6  Barbour, 
Sup.  Ct.  28. 

((/)  Goodburn  v.  Stevens,  5  Gill,  1  ; 
Greene  v.  Greene,  1  Ham  244;  Richard- 
son V.  W.vatt,  2  Desau.  471  ;  Wool- 
dridge  v.  Wilkins,  3  V.  E.  Howard,  360, 
371;  Burnside  v.  Merrick.  4  Met.  541  ; 
Dyer  v.  Clark,  .5  Met.  562.  In  this 
last  case  the  liabilities  of  partnership 
property  to  partnership  creditors  were 
elaborately  considered  in  the  decision 
of  the  court,  the  purport  of  which  is 
given  in  the  head  note,  as  follows  :  — 
When  real  estate  is  purchased  by  part- 
ners, with  the  partnership  funds,  for 
partnership  use  and  convenience,  al- 
thougli  it  is  conveyed  to  them  in  such 
a  manner  as  to  make  them  tenants  in 
common,  yet  in  the  absence  of  an  ex- 
press agreement,  or  of  circumstances 
showing  an  intent  that  such  estate  shall 
be  held  for  their  separate  use,  it  will  be 
considered  and  treated,  in  equity,  as 
vesting  in  them,  in  their  partnership 
capacity,  clothed  with  an  implied  trust 
that  they  shall  hold  it,  until  the  pur- 
poses for  which  it  was  so  purchased 
shall  be  accomplished,  and  that  it  sliall 
be  applied,  if  necessary,  to  the  payment 
of  the  partnership  debts.  Upon  the 
dissolution  of  the  partnership,  by  the 
death  of  one  of  the  partners,  the  sur- 
vivor has  an  equitable  lien  on  such  real 
estate  for  his  indemnity  against  the  debts 
of  the  firm,  and  for  securing  the  balance 
that  may  be  due  to  him  from  the  de- 
ceased partner,  on  settlement  of  the 
partnership  accounts  between  them  ; 
and  the  widow  and  heirs  of  such  de- 
ceased partner  have  no  beneficial  in- 
terest in  such  real  estate,  nor  in  the 
rent  received  therefrom  after  his  death, 
until  the   surviving   partner   is   so   in- 


demnified. See  Howard  v.  Priest,  5 
Met.  582 ;  Peck  v.  Fisher,  7  Gush.  386. 
—  Smith  V.  Smith,  5  Ves.  189._  The 
estates  in  this  case  were  held  subject  to 
dower,  having  been  purchased  with  the 
partnership  fund,  but  conveyed  to  one 
partner  under  a  specific  agreement  that 
they  should  be  his,  and  he  should  be 
debtor  for  the  money.  Lord  Chancellor 
Loughborowjh  said,  "  If  these  estates  had 
only  been  conveyed  to  one  partner, 
having  been  purchased  with  the  part- 
nership funds,  they  would  have  been 
part  of  the  partnership  property.  But 
that  was  not  the  nature  of  the  transac- 
tion. The  distinction  is,  the  agreement 
as  to  the  purchase  of  these  houses  was 
specific.  Upon  that  they  never  could 
be  specifically  divided,  as  if  they  were 
part  of  the  partnership  stock  ;  but  when 
they  came  to  settle,  the  houses  were 
Robert  Smith's,  and  he  was  debtor  for 
so  much  money." 

(h)  Pierce  v.  Trigg,  10  Leigh,  406. 
Tucker,  P.,  (with  whom  Cabell,  J., 
agreed)  after  a  review  of  the  English 
cases  said,  "  I  think  then  the  doctrine 
laid  down  in  Gow  on  Partnership,  51, 
and  3  Kent,  Comm.  37,  may  now  be 
taken  as  settled  in  England ;  namely, 
that  real  estate  purchased  for  partner- 
ship purposes  with  partnership  funds, 
and  used  as  a  part  of  the  stock  in 
trade,  is  to  be  considered  to  every  in- 
tent as  personal  property,  not  only  as 
between  the  members  of  the  partner- 
ship respectively,  and  their  creditors, 
but  also  as  between  the  surviving  part 
ner  and  the  representatives  of  the  de- 
ceased. The  legal  title  may  indeed  be 
in  the  heir,  but  let  the  legal  title  be  in 
whom  it  may,  it  is  in  equity  deemed 
partnership  property,  and  the  partners 
[135] 


129* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


stated,  that  this  rule  extends  only  so  far  as  may  be  made 
necessary  by  the  business  or  debts  of  the  partnership,  and  as 
soon  as  this  necessity  ceases,  any  remaining  real  estate  has 
all  the  incidents  of  real  property,  as  to  conveyance,  inherit- 
ance, and  dower.  And  where  the  land  purchased  with  the 
partnership  funds  is  afterwards  sold  by  the  partner  who  has 
the  legal  title  to  the  whole,  or  to  a  part  as  tenant  in  common, 
neither  the  firm  nor  its  creditors  have  any  lien  on  the  land  for 
partnership  *purposes,  against  a  purchaser  without  notice  or 
knowledge,  where  the  deed  to  the  partners  did  not  describe  them 
as  members  of  a  firm,  or  partners,  or  otherwise  indicate  the 


are    deemed    cestnis    que  trust  thereof, 
while  the  holder  of  the  legal  title  is  hut 
a  trustee  for  the  partnership."  In  Pugh  v. 
Currie,5  Ala.N.  S.446,  thecourtsay,  ''It 
can  make  no  difference  wliatever  that 
the  land  was  entered  in  the  name  of  the 
deceased  partner  —  the  heirs  will,  in  a 
court  of  equity,  be  considered  as  trus- 
tees of  the  surviving  partner."     In  the 
case   of    Burnside  v.  ISIerrick,   4    Met. 
541,   Shatv,    C.   J.,   having   stated    the 
question  to  be,  whether  real  estate,  pur- 
chased   by    partners,    for    partnership 
business,  and   witli  partnership   funds, 
but  conveyed  to  them  by  such  a  deed  as,  in 
case   of  other  parties,    ivould  make   tliem 
tenants  in  common,  would  lie  considered 
as   partnership   stock,   said,    "  Though 
there  has  been  much  diversity  of  judicial 
opinion  upon  the  subject,  we  think  the 
prevailing  opinion   now   is,    that    real 
estate,  so  acquired,  is  to  be  considered 
at  law  as  the  several  property  of  the 
partners,   as   tenants  in   common  :  yet 
that  it  is  so   held,  subject  to  a  trust, 
arising  by  implication  of  law,  by  which 
it  is  liable  to  be  sold,  and  the  proceeds 
brought  into  the  partnership    fund,  as 
far  as  is  necessary  to  pay  the  debts  of 
the  firm,  and  to  pay  any  balance  which 
may  be  due  to  the  other  partners,  on  a 
final  settlement ;  and  cannot  be  held  by 
the  separate  owner,  except  to  the  extent 
of  his   interest  in  such   final  balance. 
And   it  follows  as  a  necessary  conse- 
quence, that  when  the  firm  is  insolvent, 
the  whole  of  the  property,  so  held,  must 
be  brought  into  the  partnership  fund,  in 
order  to  satisfy  the  partnership  creditors, 
as  far  as  it  will   go  for  that   purpose." 
See  Buchan   v.   Sumner,   2  Barb.  Ch. 
165 ;  Smith  v.  Tarlton,  2  Barb.  Ch.  236; 
[136] 


McGuire  i;.  Ramsey,  4  Eng.  (Ark.)  518  ; 
Hoxie   V.  Carr,  1    Sumn.  182.     In  the 
case  of  Phillips  v.  Crammond.  2  Wash. 
C.  C.  445,  Washington,  J.,  in  delivering 
hisopinion,said,  "  The  general  principle 
is,  that  if  a  receiver,  executor,  factor,  or 
trustee,   lay   out  the  money  which  he 
holds  in  his  fiduciary  character,  in  the 
purchase  of  real  property,  and  take  the 
conveyance    to  himself,  he  who  is   en- 
titled to  the  money,  which  has  been  thus 
invested,  may  follow  the  same,  and  con- 
sider the  purchase  as  made  for  his  use, 
and  the  purchaser  a  trustee  for  him.  Up- 
on the  same  principle,  I  conceive  that  a 
resulting  trust  would  arise  to  a  partner- 
ship concern  in  lands  purchased  by  one 
of  the  partners,  and  paid  for  out  of  the 
joint  funds.  ..... 

But  this  species  of  resulting  trust  is 
open  to  certain  qualifications,  amongst 
which  it  is  proper  to  notice  the  follow- 
ing, viz. :  that  the  person  whose  money 
was  invested  in  the  purchase,  is  not 
obliged  to  take  the  land,  and  to  consider 
the  purchaser  as  his  trustee,  but  may 
elect  to  treat  him  as  his  debtor,  and  to 
claim  the  money  instead  of  the  proper- 
ty. As  a  consequence  of  this,  and  be- 
cause the  claim  to  a  resulting  trust  is 
merely  that  of  an  equity,  founded  upon 
the  presumptive  intention  of  the  parties, 
that  equity  may  be  rebutted,  even  by 
parol  evidence,  and  circumstances  to 
defeat  it.  If,  for  instance,  the  person 
for  whose  benefit  the  trust  would  other- 
wise be  created,  declares  that  the  pur- 
chase was  not  made  for  him,  or  if  both 
parties  treat  it  as  a  purchase  for  the  use 
of  him  to  whom  the  conveyance  was 
made,  no  resultingtrust  will  arise."  But 
the  partner  has  no  interest  in  the  estate 


en.  XII. 


PARTNERSHIP. 


130 


fact  that  the  land  was  purchased  as  partnership  property,  (i) 
But  *a  purchaser  with  actual  or  constructive  notice  that  the 
land  is  partnership  property,  holds  it  chargeable  with  the 
debts  of  the  partnership,  although  he  had  no  knowledge  of 
those  debts.  (J) 

SECTION  in. 

OF    THE    GOOD    WILL. 

The  good-will  of  an  establishment  may  be  considered,  at 
least  for  some  purposes,  as  a  partnership  property.  If  it  could 
not  be  attached,  it  might  still  be  assigned  for  the  benefit  of 
creditors.  Perhaps  it  would  pass  to  the  assignees  of  a 
bankrupt  or  insolvent,  by  operation  of  law ;  but  not  so  as  to 
carry  with  it  any  obligation  of  further  labor  or  responsibility 
on  the  part  of  the  insolvent,  to  make  the  good-will  availa- 
ble, (k) 


purchased  in  his  copartner's  name,  un- 
less it  was  intended  or  used  for  partner- 
ship purposes.  Cox  v.  McBurney,  2 
Sandf.  561. 

((')  It  has  been  held  that  real  estate, 
used  by  the  partners  for  partnership  pur- 
poses, but  conveyed  to  them  in  fee  as 
tenants  in  common,  and  afterwards  mort- 
gaged by  one  partner  without  notice  to 
the  mortgagee  of  existing  partnership 
debts,  is  to  be  considered  real  estate  as 
between  the  mortgagee  and  the  partner- 
ship creditors,  and  liable  in  the  first  in- 
stance to  the  mortgagee.  McDermont  v. 
Laurence,  7  S.  &  R.  438.  Tilghman,  C. 
J.,  said,  "  Land,  except  for  the  purpose 
of  erecting  necessary  buildings,  is  not 
naturally  an  object  of  trade  or  commerce. 
Yet  there  is  no  doubt,  that  by  the 
agreement  of  the  partners,  it  may  be 
brought  into  the  stock,  and  considered 
as  personal  property,  so  far  as  concerns 
themselves  and  their  heirs  and  personal 
representatives.  But  if  a  conveyance  of 
land  is  taken  to  partners  as  tenants  in 
common,  without  mention  of  any  agree- 
ment to  consider  it  as  stock,  and  after- 
wards a  stranger  purchases  from  one  of 
the  partners,  it  would  be  unjust  if  with- 
out notice  he  should  be  affected  by  any 
private  agreement."  See  also  Forde  v. 
12» 


Herron,  4  Munf.  321.  In  this  case, 
Roane,  J.,  in  delivering  the  judgment  of 
the  court,  said,  "  The  court  is  of  opinion 
that,  although  real  property,  purchased 
with  the  effects  and  used  for  the  pur- 
poses of  a  mercantile  firm  or  copartnery, 
may,  in  equity,  be  liable  to  discharge 
the  balance  due  from  the  company  to 
any  partner,  in  preference  to  the  private 
and  individual  debt  of  any  other  part- 
ner, it  is  nevertheless  competent  to  the 
members  of  such  copartnery  to  acquire 
such  property  jointly,  as  individuals,  or 
to  lose  the  lien  aforesaid,  (generally  ex- 
isting upon  the  social  property,)  by  acts 
tending  to  mislead  or  deceive  creditors 
or  purchasers  iu  this  particular."  See 
also  Marvin  v.  Trumbull,  Wright, 
(Ohio,)  386. 

(/)  Hoxie  V.  Carr,  1  Sumner,  182. 

(k)  Dougherty  v.  Van  Nostrand, 
Hoff.  Ch.  R,  68.  It  has  been  held  that  the 
good-will  of  a  partnership  is  not  part- 
nership stock,  and  survives.  Ham- 
mond V.  Douglas,  5  Ves.  539.  This 
was  doubted  in  Crawshay  v.  Collins,  15 
Ves.  227.  But  Hammond  v.  Douglas 
was  sustained  in  Lewis  v.  Langdon,  7 
Simons,  421.  The  good-will  of  an  esta- 
blishment is  recognized  as  a  valuable 
interest  in  equity.     Kennedy  v.  Lee,  3 

[137] 


i3r 


THE   LAW   OF   CONTRACTS. 


[book  I. 


SECTION  IV. 

OF  THE   DELECTUS    PERSONARUM. 

The  partnership  must  be  voluntary ;  and  therefore  no  part- 
ner and  no  majority  of  partners  can  introduce  a  new  member 
without  the  consent  of  the  others.  The  delectus  personarnm 
is  always  preserved  ;  and  if  one  partner  sells  out  his  interest  in 
*the  firm,  this  works  a  dissolution  of  the  partnership,  which 
can  only  be  renewed  by  the  agreement  of  all.  But  such  trans- 
fer may  give  to  a  bond  fide  purchaser  all  the  right  of  the  part- 
ner selling  out,  to  his  share  of  the  surplus  upon  a  settle- 
ment. (/) 

SECTION  V. 
HOAV  A  PARTNERSHIP  MAY  BE  FORMED. 

A  partnership  may  be  formed  by  deed,  or  by  parol ;  and 
with  or  without  a  written  agreement,   [m)     But  the  law  will 


Meriv.  452  ;  Kuott  v.  Morgan,  2  Keen, 
213;  Bell  v.  Locke,  8  Paige,  75.  As 
to  the  proper  meaning  of  the  term 
•'  Good-will,"  as  used  in  trade,  and  the 
nature  and  extent  of  the  rights  which 
pass  by  an  assignment  of  the  "  Good- 
will" of  a  business,  see  Harrison 
V.  Gardner,  2  Madd.  198. 

(I)  Gilmore  v.  Black,  2  Fairfield,  488 ; 
Griswold  i\  Waddington,  1.5  Johns.  82  ; 
Moddewell  v.  Keever,  8  W.  &  S.  63. 
The  assignment  of  shares  in  the  stock 
of  an  unincorporated  company,  tiie  cer- 
tificates of  which  contained  a  provision 
that  they  should  not  be  assigned  without 
the  consent  of  the  directors  and  trea- 
surer, being  made  without  their  assent, 
does  not  make  the  assignee  a  partner,  or 
enable  him  to  bring  a  bill  in  equity  to 
compel  the  partners  to  account.  King- 
man V.  Spurr,  7  Pick.  235.  Parker, 
C.  J.,  said,  "'It  is  a  settled  principle,  that 
a  company  or  copartnership  cannot  be 
compelled  to  receive  a  stranger  into 
their  league.  These  associations  are 
founded  in  personal  confidence  and  de- 
lectus personarnm.  It  is  even  held,  that 
an  executor  or  heir  of  one  of  the  mem- 
[138] 


bers  does  not  become  a  member,  unless 
by  consent  or  by  the  terms  of  the  com- 
pact." Compare  this  case  with  Alvord 
r.  Smith,  5  Pick.  232.  See  Murray  v. 
Bogert,  14  Johns.  318;  Marquand  v. 
N.  Y.  Man.  Co.  17  Johns.  535.  That 
no  partner  can  be  introduced  by  mere 
sale  and  transfer  to  him  of  a  partners 
interest,  see  Mathewson  v.  Clarke,  6 
How.  122:  Mason  v.  Connell,  1  Whait. 
381 ;  Putnam  v.  Wise,  1  Hill,  (N.  Y.) 
234.  See  also  Channel  v.  Fassitt,  16 
Ohio,  166  :  Crawshay  v.  Maule,  1  Swanst. 
508. 

On)  Owen  ex  parte  7  E.  L.  &  E.  305 ; 
Smith  V.  Tarlton,  2  Barb.  Ch.  R.  336.— 
Although  ordinary  partnerships  may  be 
formed  without  any  written  contract, 
and  the  acts  and  words  of  the  parties  are 
ordinarily  sufticient  for  that  purpose,  yet 
if  the  object  of  the  company  be  to  spec- 
ulate in  the  purchase  and  sale  of  land, 
the  positive  rules  of  law  and  the  Statute 
of  Frauds  require  the  partnership  agree- 
ment to  be  in  writing,  and  a  court  of 
equity  w^ill  not  enforce  a  parol  contract 
for  such  a  purpose.  Smith  v.  Burnham, 
3  Sumner,  435 ;  Henderson  v.  Hudson, 


CU.   XII.] 


PARTNERSHIP. 


132 


not  give  effect  to  an  agreement  to  form  a  partnership  for  ille- 
gal transactions  or  purposes,  {n)  An  action  cannot  be  main- 
*tained  for  the  breach  of  an  agreement  to  become  a  partner, 
vinless  the  terms  of  the  intended  partnership  were  specific  and 
are  clearly  proved,  (o)  But  where  a  partner  in  an  existing 
firm  agreed  that  a  certain  person  should  be  received  as  a  part- 
ner in  that  firm,  it  was  held  that  an  action  might  be  main- 
tained for  a  breach  of  that  agreement,  and  some  uncertainty 
in  the  terms  of  the  agreement,  was  not  a  sufficient  defence,  {p) 
A  partnership,  in  general,  is  constituted  between  indivi- 
duals, by  an  agreement  to  enter  together  into  a  general  or 
a  particular  business,  and  share  the  profits  and  the  losses 
thereof,  (q)      And  this,  however  unequal  the  shares  may  be, 


1  Munf.  510.  Eidgway's  Appeal,  15 
Penn.  177.  But  this  is  said  in  a  late 
case  to  apply  only  to  the  contract  be- 
tween the  parties,  and  that  as  to  third 
persons  the  partnership  may  be  proved 
like  any  other.  In  re  Warren,  Daveis, 
320. — If  articles  of  partnership  exist,  a 
creditor  of  the  firm  may  still  prove  the 
partnership  by  parol.  Griffin  v.  Doe,  12 
Ala.  783.  But  the  evidence  of  a  part- 
nership must  be  submitted  to  the  jury. 
Drake  v.  Elwyn,  1  Gaines,  184.  For 
the  existence  of  a  partnership  or  joint 
connection  is  a  question  of  fact.  Bee- 
cham  V.  Dodd,  3  Harring.  485.  "Whether 
the  terms  of  the  agreement  and  the  facts 
as  found  by  the  jury  constitute  a  part- 
nership, is  a  question  of  law.  Id. ; 
Everitt  v.  Ghapman,  6  Conn.  347  ;  Tcr- 
rill  V.  Richards,  1  Nott  &  McCord,  20; 
Gilpin  V.  Temple,  4  Harring.  190. 

(n)  Armstrong  v.  Lewis,  2  Gr.  &  M. 
274;  Ewing  v.  Osbaldiston,  2  My.  & 
Gr.  53.  But  where  two  persons  carried 
on  the  business  of  pawnbrokers  under  a 
deed  of  partnership ;  and  the  business 
was  conducted  solely  in  the  name  of 
one,  and  he  only  was  licensed  :  Semble, 
that  although  the  parties  might  have 
made  themselves  liable  to  penalties  im- 
posed by  the  statute  39  &  40  Geo.  3,  c. 
99,  yet,  that  it  being  no  part  of  tlie  con- 
tract to  carry  on  the  partnership  in  such 
a  manner  as  to  contravene  the  law,  the 
contract  was  not  void.  If  however  a 
collateral  agreement  so  to  conduct  the 
partnership  had  been  proved,  its  illegali- 
ty -would  have  prevented  either  party 


from  acquiring  any  right  under  the  part- 
nership. 

(o)  Figes  V,  Gutler,  3  Starkie,  139. 

(p)  McNeill  V.  Kcid,  9  Bing.  68.  Thi- 
dal,  G.  J.,  said,  "  The  other  point  for 
our  consideration  under  this  head  of  ob- 
jection is,  that  the  contract  is  too  vague, 
too  uncertain,  as  to  the  term  of  partner- 
ship, amount  of  capital  to  be  contributed, 
and  the  like,  to  be  the  subject  of  esti- 
mate by  a  jury.  But  is  that  a  correct 
statement  of  the  evidence  ?  It  is  plain 
that  the  plaintiff  considered,  and  that 
the  defendant  led  him  to  consider,  that 
he  was  contracting  for  a  fourth  part  of 
the  defendant's  business,  in  the  room  of 
Muspratt,  who  had  quitted  it ;  and  that 
both  the  defendant  and  his  agent.  Gar- 
stairs,  knew  the  precise  extent  and  va- 
lue of  such  an  interest.  That  being  so, 
the  case  is  clear  of  the  difficulty  which 
arose  in  Figes  v.  Cutler,  where  the  evi- 
dence was  too  indistinct  to  enable  the 
jury  to  come  to  any  conclusion.  It  is 
unnecessary  to  advert  to  the  cases  in 
equity,  because  this  is  not  a  proceeding 
to  enforce  performance  of  a  contract, 
but  to  obtain  damages  for  the  breach 
of  it." 

(q)  Langdale,  ex  parte,  IS  Ves.  300. 
In  this  case  the  Lord  Chancellor,  (El- 
don  )  said,  '•  The  criterion  of  a  partner- 
ship is  whether  the  parties  are  to  parti- 
cipate in  profit.  That  has  been  the 
question  ever  since  the  case  of  Groves  r. 
Smith."  If  the  actual  contract  give  a 
claim  upon  the  profits,  or  the  applica- 
tion of  them,  that  is  partnership.  See 
[139] 


133 


THE   LAW    OF   CONTRACTS. 


[BOOK  I. 


and  even  if  one  of  the  parties  has  no  direct  interest  or  pro- 
perty in  the  capital  of  the  firm.  In  the  absence  of  specific 
stipulations  or  controlling  evidence,  the  presumption  of  law 
is,  that  the  partners  share  the  profits  equally,  (r)  The  arti- 
cles may  provide  or  omit  a  period  for  the  continuance  of  the 
partnership.  But  if  such  a  period  be  provided  and  the  time 
expires,  and  then  the  partnership  is  renewed  by  agreement,  it 
has  been  held  that  the  new  partnership  is  founded  upon  the 
same  terms  as  the  old  one,  in  the  absence  of  opposing  testi- 
mony, (s) 

It  is  certain  that  persons  may  be  copartners  as  to  third 
parties,  and  brought  within  all  the  liabilities  of  partnership  as 
to  them,  who  are  not  partners  between  themselves,  (t)  For 
whether  they  are   partners  as  between  themselves  is  deter- 


Ex  parte  Hamper,  17  Ves.  403,  Sum- 
ner's Ed.  &  note,  p.  404 ;  Cushman  v. 
Bailey,  1  Hill,  526  ;  Belknap  v.  Wendell, 
1  Foster,  175;  Catskill  Bank  v.  Gray, 
14  Barb.  471. — A  participation  in  the 
uncertain  profits  of  trade,  renders  one 
a  copartner  in  respect  of  the  liabilities 
of  the  concern  to  third  persons.  Oakley 
V.  Aspinwall,  2  Sandf.  Sup.  Ct.  R.  7. 
See  Bucknam  v.  Barnum,  15  Conn.  67 ; 
Cushman  v.  Bailey,  1  Hill,  526.  See 
also,  on  this  subject,  Mair  r.  Glennie,  4 
M.  &  Sel.  240 ;  Smith  v.  Watson,  2  B. 
&  Cr.  401  ;  Hesketh  v.  Blanchard,  4 
East,  144  ;  Reid  v.  Hollinshead,  4  B.  & 
Cr.  867  ;  Everitt  v.  Chapman,  6  Conn. 
347  ;  Harding  v.  Foxcroft,  6  Greenl.  76  ; 
Thorndike  v.  De  Wolf,  6  Pick.  124; 
Jackson  i'.  Robinson,  3  Mason,  138; 
Griffith  V.  Buffum,  22  Verm.  181. 

(r)  Peacock  v.  Peacock,  16  Ves.  49; 
Farrar  v.  Beswick,  1  Mood.  &  Rob. 
527  ;  Gould  v.  Gould,  6  Wend.  263. 
But  see  Thompson  v.  Williamson,  7 
Bligh,  432. 

(s)  Dickinson  ?;.  Survivors  of  Bolds 
and  Rhodes,  3  Desau.  501.  This  was 
a  bill  in  equity  for  an  account  of  the 
profits  of  a  copartnership.  The  only 
question  in  the  case  was  as  to  how  long 
the  partnership  continued.  It  appeared 
by  the  original  articles  that  it  com- 
menced in  1787,  under  an  agreement  to 
continue  seven  years.  After  the  expi- 
ration of  that  period,  the  defendants, 
being  desirous  of  renewing  the  connec- 
tion, transmitted  to  the  complainant  in 
London,  where  he  resided,  the  articles 
[140] 


of  copartnership,  with  an  indorsement 
of  a  renewal  of  them  for  another  term 
of  seven  years,  to  commence  from  the 
expiration  of  the  former  one.  The 
complainant,  in  answer  to  this  commu- 
nication, said  he  would  agree  to  the 
proposition,  on  the  happening  of  a  cer- 
tain contingency.  It  did  not  distinctly 
appear  whether  the  contingency  hap- 
pened or  not.  But  it  did  appear  that 
the  complainant  continued  to  discharge 
his  duties  as  a  partner  in  the  same 
manner  as  formerly.  On  this  evidence 
the  defendants  contended  that  the  part- 
nership was  not  renewed  for  seven  years, 
but  was  determinable  at  the  pleasure  of 
either  party.  But  the  court  held  that 
the  complainant's  continuing  to  dis- 
charge his  former  duties  on  the  original 
terms,  was  a  substantial  acceptance  of 
the  defendants'  proposition,  and  so  the 
partnership  was  renewed  for  another 
term  of  seven  years.  . 

{t)  If  parties  are  so  associated  in 
business  as  to  make  them  partners  with 
respect  to  third  persons,  but  expressly 
agree  that  a  partnership  shall  not  exist, 
they  are  not  partners  as  between  them- 
selves. Gill  V.  Kuhn,  6  Serg.  &  Rawle, 
333  ;  Hesketh  v.  Blanchard,  4  East,  144. 
If  however  parties  by  their  conduct 
have  treated  their  contract  as  a  part- 
nership, and  have  so  held  themselves 
out  to  the  vrorld,  it  is  unnecessary  to 
put  a  construction  upon  the  written  con- 
tract, as  between  themselves  and  others. 
Stearns  v.  Haven,  14  Verm.  540. 


CH.  XII.]  PARTNERSHIP.  *134 

mined  chiefly  by  reference  to  their  own  intention  ;  but  whe- 
ther they  are  partners  in  respect  to  third  parties  is  determined 
by  a  consideration  of  this  intention,  and  also  of  that  actual 
participation  of  profits  which  is  held  to  require  of  them  to 
participate  in  the  losses,  because  it  diminishes  the  fund  from 
which  the  losses  are  to  be  paid  ;  {ii)  and  also  of  the  way  and 
*  degree  in  which  the  person  sought  to  be  charged  as  partner 
has  been  held  out  to  the  world  as  such,  so  that  the  person 
seeking  to  charge  him  had  good  reason  to  believe  a  debt  of 
the  partnership  carried  with  it  his  responsibility,  (tin) 

If  one  lends  money  to  be  used  by  the  borrower  in  his  busi- 
ness, the  lender  to  receive  interest,  and  in  addition  thereto 
a  share  of  the  profits  of  the  business,  a  question  may  arise 
whether  he  is  a  lender  on  usury,  or  a  partner.  He  would 
seem  indeed  to  be  both ;  only  a  usurer  as  between  the  lender 
and  borrower,  but  a  partner  as  to  third  persons ;  and  it  may 
depend  upon  the  manner  in  which  the  question  is  presented, 
whether  the  character  of  a  usurer  is  to  be  fixed  upon  him.  If 
he  sues  the  borrower  for  repayment  of  the  money,  it  seems 
to  be  competent  for  the  borrower  to  allege  in  his  defence  the 
usurious  character  of  the  loan,  (uv)  But  if  a  third  party,  who 
is  a  creditor  of  the  borrower,  upon  a  debt  which  has  arisen  in 
the  business  in  which  the  money  was  lent  to  be  used,  sues 
the  lender  as  a  partner,  on  the  ground  that  he  took  away  pro- 
fits to  which  the  creditor  might  look  for  his  debt,  the  lender 
will  be  held  as  such  partner,  and  it  is  not  competent  for  him 
to  set  up  his  contract  as  usurious,  for  he  may  not  rest  his 
defence  upon  his  own  wrong,  (v) 

A  question  has  frequently  arisen  where  a  clerk,  agent,  or 
salesman  has  been  taken  into  partnership,  to  render  in  fact  the 
same  services  as  before,  or  a  person  received  to  render  such 
services  who  had  not  been  previously  employed,  upon  an 
agreement  that  the  services  shall  be  compensated  not  by  a 
salary,  but  by  a  share  of  the  profits.     Is  such  person  a  part- 

(u)  As  to  what  participation  of  profits  See  also  Gilpin  v.  Enderbey,  5  B.  & 

makes  one  a  partner,  see  infra,  n.  (w.)  Aid.  954,  s.  c  5  Moore,  571. 

(uu)  Cottrill  V.  Vanduzen,  22  Verm.  (v)   Grace  v.   Smith,  2  W.  Bl.  998; 

511;    Gilpin  v.    Temple,  4    Harrini,'.  Morse  w.  Wilson,  4  D.  &  E.  .3r)3  ;  Case 

90;  Fuvber  v.  Carter,  11  Humph.  271.  of  Lane,  Eraser  &  Boylston,  cited  in  17 

(uv)  Morse  v.  Wilson,  4  T.  R.  353.  Vesey.  405,  Sumner's  edition. 

[141] 


135*  THE   LAW   OF    CONTRACTS.  [BOOK   I 

ner  as  to  third  parties  ?  It  will  appear,  by  the  cases  cited  in 
the  notes,  that  there  is  some  uncertainty  upon  this  point. 
From  many  of  the  cases  it  would  seem  that  a  rule  of  this 
kind  was  adopted ;  namely,  that  where  the  bargain  was  that 
A.  should  receive  for  his  services  one  tenth  of  the  profits,  this 
made  him  a  partner  ;  but  if  he  was  to  receive  a  salary,  equal 
in  amount  to  the  one  tenth  part  of  the  profits,  this  did  not 
make  him  a  partner.  This  rule  is  somewhat  technical,  but 
not  altogether  so;  and  would  doubtless  be  applied  *  to  such 
a  contract  now,  if  the  words  used  were  not  accompanied  by 
other  language,  or  by  facts  which  required,  or  at  least  justi- 
fied a  different  interpretation.  Whether  a  person  were  a 
partner  with  others,  should  be  determined  in  this  as  in  other 
cases  by  a  consideration  of  their  intention,  and  of  the  way 
in  which  the  alleged  partner  was  held  forth  to  the  public,  and 
the  interest  and  power  he  had  in  or  over  the  fund  to  which 
the  creditors  of  the  partnership  could  look  for  their  security. 
Where  A.  employs  B.,  and  agrees  to  give  him  in  lieu  of 
wages,  or  by  way  of  wages,  a  certain  proportion  of  A.'s  pro- 
fits, this  need  not  give  B.  any  right  to  control  the  business  or 
interfere  therein  in  any  way.  They  are  not  then  necessarily 
partners  ;  because  there  is  no  reciprocity  between  them  :  un- 
less some  other  sufficient  reason  exists  for  so  treating  them. 
But  the  reason  usually  alleged  as  that  for  which  he  who 
shares  in  the  profits  is  held  liable  as  a  partner  for  the  debts, 
namely,  that  he  has  diminished  the  fund  from  which  the 
debts  are  to  be  paid,  seems  to  be  regarded  as  not  applicable 
to  one  who  takes  wages,  though  they  may  be  measured  by 
the  profits  ;  and  if  this  is  the  bargain  in  fact,  the  manner  of 
its  expression  would  seem  not  to  be  material.  It  is  certain 
that  while  the  salesman  took  a  thousand  dollars  a  year  as 
wages  for  his  services,  this  did  not  make  him  a  partner.  The 
fund  to  pay  debts  grew  up  in  some  measure  from  his  ser- 
vices, and  he  was  entitled  to  be  paid  out  of  it  for  them  ;  and 
if  he  now  has,  instead  of  a  fixed  salary,  a  share  of  the  profits, 
it  might  still  be  clear  from  the  contract  and  circumstances, 
that  the  arrangement  w^as  intended  not  to  pay  him  more 
than  his  services  were  worth,  but  only  to  make  his  wages 
dependent  in  some  degree  upon  his  services,  and  so  to  stimu- 

[142] 


CH.  XII.] 


PARTNERSHIP. 


136 


late  him  to  make  the  profits,  or  the  general  fund  to  which  the 
creditors  must  look,  as  large  as  possible.  Lord  Eldon's  rea- 
son for  the  rule  seems  to  be, "  that  where  the  salesman  has  an 
amount  of  money  equal  to  one  tenth  of  the  profits,  this  gives 
him  no  action  of  account,  and  therefore  he  is  not  a  partner  ; 
but  where  he  is  to  receive  one  tenth  of  the  profits,  this  gives 
him  an  action  of  account  and  therefore  makes  him  a  part- 
ner ;  "  but  this  seems  open  to  the  objection,  that  the  question  of 
partnership  is  prior,  and  should  determine  the  right  of  account; 
whereas  this  reason  would  regard  the  right  of  account  as  prior, 
*and  determining  the  question  of  partnership,  (^w)     Lord  El- 


(w)  It  seems  to  be  well  settled,  that 
a  contract  to  pay  one  employed  in  cer- 
tain business  a  salary,  equal  in  amount 
to  a  certain  proportion  of  the  profits, 
will  not  make  such  person  a  partner. 
The  question  of  profits  is  of  importance 
only  in  determining  the  amount  of 
salary.  Neither  will  a  certain  salary, 
together  with  a  commission  of  a  certain 
per  cent,  upon  the  profits,  make  the  re- 
ceiver a  partner.  Jliller  v.  Bartlet,  15 
S.  &  E.  137  ;  Stocker  v.  Brockelbank,  5 
E.  L.  &  E.  67  ;  Dunham  v.  Rogers,  1 
Barr,  255  ;  Denny  v.  Cabot,  6  Met.  82  ; 
Hodgman  v.  Smith,  13  Barb.  302; 
Brock  way  v.  Burnap,  16  Barb.  309. 
And  the  better  opinion  seems  now  to 
be,  that  an  agreement  by  which  a  person 
is  to  receive  a  certain  portion  of  the  pro- 
fits for  his  salary,  does  not  constitute  a 
partnership,  such  person  having  no  spe- 
cific interest  in  the  profits  themselves,  as 
profits.  See  Loomis  v.  JMarsiiall,  12 
Conn.  69 ;  Burckle  v.  Eckart,  1  Denio, 
337;  S.  C.  3  Comst.  132;  Vanderburgh 
V.  Hull,  20  Wend.  70;  Ogden  v.  Astor, 
4  Sandf  311  ;  Newman  v.  Bean,  1 
Foster.  93 ;  Keed  v.  Murphy,  2  Greene 
(Iowa)  574;  Goode  v.  M'Cartney.  10 
Tex.  193;  Glenn  v.  Gill,  2  Maryl.  1  ; 
Drake  v.  Ramey,  3  Rich.  37;  Bartlett 
V.  Jones,  2  Strob.  471;  Hodges  v.  Dawes, 
6  Ala.  215  ;  Wilkinson  v.  Jett,  7  Leigh, 
115.  But  see  Hevhoe  v.  Burge,  9  Com. 
Bench,  431  :  Taylor  v.  Terme,  3  Har. 
&  Johns.  505 ;  Everitt  v.  Chapman,  6 
Conn.  351.  — In  Bradley  v.  White,  10 
Mete  303,  it  was  held  that  an  agreement 
between  D.  and  W.,  by  which  D.  was  to 
furnish  goods  for  a  store,  and  pay  all 
the  expenses,  and  W.  was  to  transact 
the  business  of  the  store  and  receive 
half  of  the  profits,  as  a  compensation  for 


his  services,  did  not  constitute  "W".  a 
partner,  and  that  in  an  action  against 
D.  &  W.  for  goods  sold  and  delivered 
to  D.,  W.  was  not  liable.  See  also 
Ambler  v.  Bradley,  6  Verm.  119  ; 
Blanchard  v.  Coolidge,  22  Pick.  151. 
This  question  also  underwent  much 
discussion  in  Denny  v.  Cabot,  6  Mete. 
82.  The  court  there  said,  "  On  this 
point  the  distinction  appears  to  us  to 
be  well  established,  that  a  party  who 
participates  in  the  profits  of  a  trade  or 
business,  and  has  an  interest  in  the  pro- 
fits, as  profits,  is  chargeable  as  a  partner 
with  respect  to  third  persons  ;  but  if  he 
is  only  entitled  to  receive  a  certain  sum 
of  money,  in  proportion  to  a  given 
quantum  of  the  profits,  as  a  compensa- 
tion for  his  labor  and  services,  he  is  not 
thereby  liable  to  be  charged  as  a  part- 
ner. It  is  true  that  Lord  Eldon  has 
expressed  a  doubt  of  the  soundness  of 
this  distinction.  In  Ex  parte  Hamper, 
17  Ves.  404,  he  says,  'The  cases  have 
gone  to  this  nicety,  (upon  a  distinction 
so  thin,  that  I  cannot  state  it  as  esta- 
blished upon  due  consideration,)  that  if 
a  trader  agrees  to  pay  another  person, 
for  his  labor  in  the  concern,  a  sum  of 
money,  even  in  proportion  to  the  pro- 
fits, equal  to  a  certain  share,  that  will 
not  make  him  a  partner  ;  but  if  he  has 
a  specific  interest  in  the  profits  them- 
selves, as  profits,  he  is  a  partner.'  He 
admits,  however,  that  the  law  of  part- 
nership is  thus  settled.  Ex  parte  Wat- 
son, 19  Ves.  459  ;  Ex  parte  Rowlandson, 
1  Rose.  92.  And  this  distinction  has 
been  confirmed  by  numerous  subsequent 
decisions.  In  Cutler  v.  Winsor,  6  Pick. 
335,  it  was  decided,  that  an  agreement 
between  the  owner  and  master  of  a 
vessel  to  divide  the  earnings  of  the 
[143] 


-136 


THE   LAAV    OF   CONTRACTS. 


[book  I. 


don  says  "  the  cases  have  gone  to  this  nicety,"  and  speaks  of 


vessel  between  them,  after  deducting 
certain  fixed  charges,  did  not  render 
them  liable  to  third  persons  as  partners. 
In  that  case  the  deduction  was  from  the 
gross  earnings.  And  the  agreement  is 
substantially  the  same  in  the  present 
case.  For  although,  in  terms,  the  agree- 
ment was  to  pay  Cooper  one  third  of 
the  net  earnings,  yet  tliat  is  explained 
by  the  words  immediately  following,  by 
which  it  appears  that  Cooper  was  en- 
titled to  one  third  of  the  gross  profits, 
after  deducting  certain  specified  charges; 
and  that  in  no  event  was  he  to  be  liable 
for  any  losses.  So  the  agreement  in 
this  case  is  precisely  similar  to  that  in 
Loomis  V.  Marshall,  12  Conn.  69.  In 
that  case,  French  and  Hubbcll  agreed 
with  Marshall  to  manufacture  his  wool 
into  cloth,  and  he  agreed  to  give  them, 
for  their  services,  and  the  materials  they 
should  furnish,  a  certain  proportion  of 
'  the  net  proceeds  of  all  the  cloths,  after 
deducting  incidental  and  necessary  ex- 
penses of  transporting  and  other  proper 
charges  of  sale.'  It  was  not  expressed 
in  terms  to  be  for  such  compensa- 
tion, but  such  the  court  held  was  the 
legal  meaning  of  the  agreement.  This 
case  was  very  ably  discussed  by  the 
learned  judge  who  delivered  the  opi- 
nion of  the  court,  and,  as  it  seems  to 
us,  the  decision  is  fully  sustained  by 
well-established  principles.  So  in  Rey- 
nolds V.  Toppan,  15  Mass.  370,  it  was 
agreed  between  the  master  and  owner 
of  a  vessel,  that  the  latter  was  to 
receive  two  fifths  of  the  net  earn- 
ings of  the  vessel ;  and  it  was  held  that 
this  did  not  render  him  liable  as  a  part- 
nci-.  So  in  Vanderburgh  (;.  Hull,  20 
Wend.  70,  where  a  person  was  employed 
as  an  agent  in  conducting  the  business 
of  a  foundry,  at  a  salary  of  $300  ;  and 
in  addition  thereto  he  was  to  receive  one 
third  of  the  profits  of  the  foundry,  if  any 
were  made ;  and  he  had  nothing  to  do 
with  the  losses ;  it  was  held,  that  the 
agent  was  not,  either  as  to  his  employ- 
ers or  third  persons,  a  partner.  So  in 
Tm-ner  v.  Bissell,  14  Pick.  192,  it  was 
agreed  that  Bissell  was  to  furnish  wool 
to  be  worked  into  satinets  by  Root,  who 
was  to  find  and  pay  for  warps  for  the 
same,  and  Bissell  was  to  yiay  Root  for 
working  the  wool,  finding  the  warps,  &c., 
40  per  cent,  on  the  sales  of  the  satinets. 
It  was  held,  that  the  defendants  were 
not  partners  inter  se,  nor  as  to  third  per- 

[144] 


sons."  —  And  in  farther  exposition  of 
this  principle  it  is  said,  "  If  a  person 
stipulate  for  a  share  in  the  profits,  so  as 
to  entitle  him  to  an  account,  and  to  give 
him  a  specific  lien,  or  a  preference  in 
payment,  over  all  creditors,  and  giving 
him  the  full  benefit  of  the  profits  of  the 
business,  without  any  corresponding  risk 
in  case  of  loss ;  justice  to  the  other  cre- 
ditors would  seem  to  require  that  he 
should  be  holden  to  be  liable  to  third 
persons  as  a  partner.  But  where  a  par- 
ty is  to  receive  a  compensation  for  his 
labor,  in  proportion  to  the  profits  of  the 
business,  without  having  any  specific 
lien  upon  ruch  profits,  to  the  exclusion 
of  other  creditors,  there  seems  to  be  no 
reason  for  holding  him  liable,  as  a  part- 
ner, -"ven  to  third  persons.  This  dis- 
tinction is  supported  by  Cary,  in  his 
treatise  on  Partnership,  and  Chancellor 
Walworth 'considers  it  as  a  sound  one, 
in  Champion  v.  Bostick,  18  Wend.  184. 
And  it  is  adopted  with  approbation  by 
Chancellor  Kent,  in  his  Commentaries. 
3  K^nt  Com.  (4th  ed.)  25,  note.  The 
remarks  of  Judge  Story  on  these  dis- 
tinctions are  very  forcible,  and  seem  to 
us  to  be  founded  on  sound  principles." 
'•  The  question  in  all  this  class  of  cases," 
he  says,  "is  first  to  arrive  at  the  inten- 
tion of  the  parties  i/iter  sese ;  and  second- 
ly, if  between  themselves  there  is  no  in- 
tention to  create  a  partnership,  whether 
there  is  any  stubborn  rule  of  law,  which 
will  nevertheless,  as  to  third  persons, 
make  a  mere  participation  in  the  profits 
conclusive  that  there  is  a  partnership," 
"  It  is  said,  '  every  man  who  has  a  share 
in  the  profits  of  a  trade  ought  also  to 
bear  his  share  in  the  loss,  as  a  partner.' 
In  a  just  sense  this  language  is  sufficient- 
ly expressive  of  the  general  rule  of  law ; 
but  it  is  assuming  the  very  point  in  con- 
troversy to  assert  that  it  is  universally 
true,  or  that  there  are  no  qualifications, 
or  limitations,  or  exceptions  to  it.  On 
the  contrary,  the  very  cases  alluded  to 
by  Lord  Eldon,  in  the  clearest  terms 
establish  that  such  qualifications,  limita- 
tions, and  exceptions  do  exist."  Story 
on  Part.  sect.  36.  "  Admitting,  how- 
ever, that  a  participation  in  the  profits 
will  ordinarily  establish  the  existence  of 
a  partncrsliip  between  the  parties,  in  fa- 
vor of  third  persons,  in  the  absence  of 
all  other  opposing  circumstances ;  the 
question  is  whether  the  circumstances, 
under  which   the    participation   exists, 


CH.  XII.J 


PARTNERSHIP. 


*137-*13 


the  rule  above  mentioned  as  settled ;  but  we  have  not  suc- 
ceeded in  finding  in  the  English  reports,  previous  cases  or  au- 
thorities which  can  be  regarded  as  establishing  this  rule. 

*  It  is  sometimes  difficult  to  distinguish  between  partnership 
and  tenancy  in  common  ;  and  this  question  is  often  important 
as  determining  between  the  adverse  rights  of  the  creditors  of 
the  individual  owners,  and  those  of  persons  who  claim  as 
partnership  creditors.  In  general,  if  the  property  owned 
jointly  is  so  owned  for  the  purpose  of  a  joint  business,  and  is 
so  used,  and  the  profits  resulting  form  a  common  fund,  it  is 
partnership  property  ;  otherwise  not.  (x) 


may  not  qualify  the  presumption,  and 
satisfactorily  prove  that  the  portion  of 
the  profits  is  taken,  not  in  the  character 
of  a  partner,  but  in  the  character  of  an 
agent,  as  a  mere  compensation  for  labor 
and  services.  If  the  latter  be  the  true 
predicament  of  the  party,  and  the  whole 
transaction  admits,  nay  requires,  that 
very  interpretation,  where  is  the  rule  of 
law  which  forces  upon  the  transaction 
the  opposite  interpretation,  and  requires 
the  court  to  pronounce  an  agency  to  be 
a  partnership,  contrary  to  the  truth  of 
the  facts,  and  the  intention  of  the  par- 
ties t  Now  it  is  precisely  upon  this  very 
ground,  that  no  such  absolute  rule  ex- 
ists, and  that  it  is  a  mere  presumption 
of  law,  which  prevails  in  the  absence  of 
controlling  circumstances,  but  is  con- 
trolled by  them,  that  the  doctrine  in  the 
authorities  alluded  to  is  founded  ;"  "  and 
there  is  no  hardship  upon  third  persons, 
since  the  party  does  not  hold  himself 
out  as  more  than  an  agent.  This  qua- 
lification of  the  rule  (the  rule  itself  being 
built  upon  an  artificial  foundation,)  is 
in  truth  but  carrying  into  effect  the  real 
intention  of  the  parties,  and  would  seem 
far  more  consonant  to  justice  and  equity 
than  to  enforce  an  opposite  doctrine, 
which  must  always  carry  in  its  train 
serious  mischiefs  or  ruinous  results, 
never  contemplated  by  the  parties." 
sect.  38. 

(x)  Post  V.  Kimberly,  9  Johns.  470  ; 
Murray  v.  Bogert,  14  Johns.  318. 
Where  the  owners  of  land  let  it,  agree- 
ing with  the  occupiers  to  receive  one 
half  of  the  grain  &c.  in  consideration  of 
tlie  occupancy,  the  owners  and  occu- 
piers, together  with  other  persons  whom 
tlie  occupiers  admitted  to  a  share  in  the 

VOL.   I.  13 


grain  in  consideration  of  their  doing  a 
portion  of  the  farm  work,  were  held  to 
be  tenants  in  common  of  the  grain. 
Putnam  v.  Wise,  1  Hill,  234  ;  Caswell  v. 
Districh,  15  Wend.  379  ;  Walker  v. 
Fitts,  24  Pick.  191  ;  Frost  v.  Kellogg, 
23  Verm.  308;  Case  v.  Hart,  11  Ohio 
364  ;  Smyth  v.  Tankersley,  20  Ala.  212. 
Jackson  v.  Eobinson,  3  Mason,  138.  A. 
and  B.  were  tenants  in  common  with  C. 
and  D.  of  a  ship  in  certain  proportions, 
and  purchased  a  cargo,  by  an  agree- 
ment, on  their  account  in  the  like  pro- 
portions for  a  voyage,  and  consigned 
the  same  to  the  master  for  sale  and  re- 
turns ;  it  was  held  that  they  were  tenants 
in  common  of  the  cargo,  and  not  part- 
ners. Slory,  J.  '■  It  does  not  by  any 
means  follow  because  the  purchase  was 
made  for  the  account  of  all,  or  the  ship- 
ment was  made  in  the  names  of  all,  that 
this  constituted  them  partners  in  the 
sense  of  a  joint  interest.  They  might 
authorize  a  common  agent  to  purchase 
or  ship  goods  for  them  according  to 
their  several  and  separate  interests, 
without  involving  themselves  in  a  joint 
partnership  responsibility.  In  my  judg- 
ment there  was  no  community  of  inte- 
rest in  the  cargo,  as  partners.  It  ap- 
pears from  the  admissions  of  the  parties, 
as  well  as  the  proofs,  that  they  never 
were,  nor  designed  to  be  partners ;  and 
that  they  held  their  titles  to  undivided 
portions  of  the  cargo,  not  as  a  common, 
but  as  a  separate  interest.  They  were, 
therefore,  tenants  in  common  of  the  car- 
go, having  no  general  community  of  the 
profit  and  loss,  but  only  a  proportion 
according  to  their  separate  interests.  If 
either  had  died,  his  share  would  not 
have  survived  to  the  others."  Harding 
[145] 


139 


THE    LAW   OF   CONTRACTS. 


[book  h 


SECTION  VI. 

OF   THE   RIGIIT   OF   ACTION   BETWEEN   PARTNERS. 

It  is  generally  true  that  one  partner  cannot  sue  a  copartner 
at  laiv  in  respect  to  any  matter  growing  out  of  the  transac- 
tions of  the  partnership,  and  involving  the  examination  of  the 
partnership  accounts;  (//)  because  courts  of  law  cannot  do 
effectual  justice  to  such  questions  and  interests,  and  resort 
must  be  had  to  courts  of  equity,  (z)  But  it  is  clear  that  a 
partner  may  sue  a  copartner  on  an  express  agreement,  and 


V.  Foxcroft,  6  Grcenl.  76.  In  this  case 
it  was  held  that  the  joint  owners  of  a 
vessel,  who  agreed  to  send  her  on  a 
foreign  voyage  for  their  mutual  benefit 
—  a  part  of  the  cargo  being  purchased  by 
each  separately,  and  a  part  by  both 
jointl} — were  tenants  in  common  of  the 
property,  and  not  partners ;  and  that 
therefore  a  creditor  of  both  owners,  for 
coi'dage  of  the  vessel,  was  not  entitled 
to  priority  in  payment,  out  of  the  vessol 
and  cargo,  against  the  separate  creditors 
of  either.  Mellen,  C.  J.,  said,  "  It  is  true, 
some  parts  of  the  cargo  were  purchased 
by  the  owners  severally,  and  put  on 
board,  and  some  parts  were  purchased 
on  joint  account;  but  to  constitute  a 
partnership,  persons  must  not  only  be 
jointly  concerned  in  the 'purchase,  but 
jointly  concerned  in  the  future  sale." 
See  Thorndike  v.  De  Wolf,  6  Pick.  124. 
Where  one  party  furnishes  a  boat  and 
the  other  sails  it,  an  agreement  to  di- 
vide the  gross  earnings  does  not  consti- 
tute a  partnership.  Bowman  i'.  Bailey, 
10  Verm.  170. 

(y)  Bovill  V.  Hammond,  6  B.  &  C. 
149;  Brown  v.  Tapscott,  6  M.  &  W. 
119:  Lawrence  v.  Clark,  9  Dana,  257. 

{z)  It  is  clear  that  one  partner  has  no 
right  of  action  against  a  copartner  for 
money  or  labor  expended  for  the  bene- 
fit of  the  concern.  See  Goddard  v.  Hodg- 
es, 1  Cr.  &  Mees.  37 ;  Holmes  v.  Higgins, 
1  B.  &  C.  74 ;  Milburn  v.  Codd,  7  B.  & 
C.  419;  Promont  v.  Coupland,  2  Bing. 
170;  Sadler  v.  Nixon,  5  Barn.  &  Ad. 
936;  Pearson  v.  Skelton,  1  M.  &  W. 
504;  Bevans  v.  Sullivan,  4  Gill,  383. 
But  one  partner  may  maintain  an  action 

[146] 


for  money  had  and  received  against  the 
other  partner,  for  money  received  to  the 
separate  use  of  the  former,  and  wrong- 
fully carried  to  the  partnership  account. 
Smith  V.  Barrow,  2  Term  Rep.  476. 
And  one  partner  may  have  an  action 
against  his  copartner  for  not  contribut- 
ing his  proportion  towards  the  common 
stock.  Thus,  where  A.  agrees  to  sup- 
ply B.  with  a  manuscript  work,  to  be 
printed  by  B.,  the  profits  of  which  are 
to  be  equally  divided,  B.  may  maintain 
an  action  against  A.  for  refusing  to  sup- 
ply the  manuscript.  This  is  not  an 
action  for  partnership  profits,  but  for 
refusing  to  contribute  the  labor  of  the 
defendant,  towards  the  attainment  of 
profits.  Gale  v.  Leckie,  2  Starkie,  107. 
The  same  principle  was  adopted  in  El- 
lison V.  Chapman,  7  Blackf.  224.  See 
also  Vance  v.  Blair,  18  Ohio,  532. —  The 
American  courts  fully  recognize  the  doc- 
trine that  during  the  existence  of  a  part- 
nership, or  even  after  its  dissolution  but 
before  the  business  is  wound  up,  and  the 
final  balance  ascertained,  no  action  at 
law  will  lie  between  partners.  Haskell 
V.  Adams,  7  Pick.  59 ;  Williams  v.  Hen- 
shaw,  12  Pick.  378;  Fanning  v.  Chad- 
wick,' 3  Pick.  420;  Causten  v.  Burke,  2 
Harr.  &  Gill,  295;  Chase  v.  Garvin,  19 
Maine,  211;  Kennedy  v.  McFadon,  3 
Harr.  &  Johns.  194 ;  Murray  v.  Bogert,  14 
Johns.  318 ;  Davenport  v.  Gear,  2  Scam. 
495.  After  such  final  balance  is  deter- 
mined, and  a  promise  by  one  partner  to 
pay  over,  the  other  partner  may  sustain 
an  action  at  law.  Gulick  v.  Gulick,  2 
Green,  578 ;  Byrd  v.  Fox,  8  Missouri, 
574.  The  promise  may  be  only  implied. 
Wray  v.  Milestone,  5  M.  &  W.  21. 


en.  XII.] 


PARTNERSHIP. 


140 


perhaps  on  an  implied  agreement,  to  do  any  act  not  involving 
a  consideration  of  the  partnership  accounts,  {a)  And  if  part- 
*ners  finally  balance  all  their  accounts,  or  a  distinct  part 
thereof  is  entirely  severed  by  them  from  the  rest,  a  suit  at 
law  is  maintainable  for  the  balance,  {b) 

If  one  of  a  partnership  who  are  plaintiffs  be  also  one  of 
a  partnership  who   are    defendants,   the    action   cannot   be 


(a)  Viin  Ness  v.  Forrest,  8  Cranch,30; 
Gibson  V.  Moore,  6  N.  H.  R.  547.  In 
this  case  Parker,  J.,  thus  states  the 
principles  applicable  to  this  point.  "As- 
sumpsit may  be  maintained  by  one  part- 
ner against  another  to  recover  a  final 
balance  upon  the  settlement  of  the  part- 
nership account,  where  there  is  an  ex- 
press proniise  to  pay.  Casey  v.  Brush, 
2  Gaines's  Rep.  293 ;  Fromont  v.  Coup- 
land,  2  Bing.  170.  In  Massachusetts 
the  court  have  held  that  where  the  part- 
nership accounts  are  closed,  and  the  ba- 
lance struck,  the  law  raises  an  implied 
promise.  Fanning  v.  Cliadwick,  3  Pick. 
423.  The  same  doctrine  is  found  in 
Rackstraw  v.  Imber,  Holt's  N.  P.  R. 
368.  So  where  the  judgment  will  bo 
an  entire  termination  of  the  partnership 
transactions,  although  there  has  been  no 
settlement  of  the  accounts  by  the  part- 
ners, nor  an  express  promise  to  pay,  an 
action  may  be  sustained.  Williams  v. 
Henshaw,  11  Pick.  82.  Probably  an 
action  may  be  maintained  by  one  part- 
ner against  the  other,  for  a  balance  due 
him  out  of  the  partnership  transactions, 
if  there  be  but  a  single  item  to  liquidate. 
Musier  v.  Trumpbour,  5  Wendell,  274 ; 
1  Stark.  78;  sed  vide  Bovill  i'.  Ham- 
mond, 6  B.  &  C.  149.  The  proposition 
that  no  action  can  be  maintained  at  law, 
by  one  partner  against  the  other,  except 
to  recover  a  final  balance,  must  be  taken 
with  reference  to  the  facts  and  questions 
arising  in  those  cases  in  which  such  lan- 
guage is  used.  In  Smith  v.  Barrow,  2 
D.  &  E.  478,  Mr.  Justice  Buller  says, 
'  One  partner  cannot  recover  a  sum  of 
money  received  by  the  other,  unless  on 
a  balance  struck,  that  sum  is  found  due 
to  him  alone.'  Similar  language  is 
found  in  Ozeas  v.  Johnston,  1  Binney, 
191  ;  Beach  v.  Hotchkiss,  2  Conn.  R. 
425  ;  Murray  v.  Bogert,  14  Johns.  318  ; 
Westerlo  v.  Evertson,  1  Wend.  532.  So 
in  Moravia  v.  Levy,  2  D.  &  E.  483,  note, 
an  action  was  sustained  for  the  amount 


of  a  balance  struck  which  the  defendant 
had  promised  lo  pay.  The  articles  con- 
tained a  covenant  to  account  at  certain 
times,  and  it  does  not  appear  whether  it 
was  a  final  balance  which  was  recovered. 
It  is  undoubtedly  true  as  a  general  rule, 
that  so  long  as  the  partnership  con- 
tinues, and  the  concerns  of  it  remain 
unadjusted,  the  law  will  raise  no  impli- 
ed promise  by  one  to  pay  the  other  upon 
a  partnership  transaction.  The  reason 
is  that  such  transactions  create  no  debt 
or  duty  to  pay.  The  act  of  one  party 
is  the  act  of  the  other — the  payment  or 
receipt  of  money  by  one  is  a  payment  or 
receipt  by  the  other — and  no  cause  of 
action  can  arise.  In  the  present  case 
there  has  been  no  balance  struck.  The 
settlement  of  the  partnership  concerns, 
generally,  still  remains  to  be  made. 
But  by  agreement  between  the  parties, 
in  relation  to  a  specific  portion  of  the 
partnership  transactions,  a  final  adjust- 
ment has  been  made.  If  this  account- 
ing by  means  of  the  reference  had  only 
been  for  the  purpose  of  ascertaining  an 
item,  in  order  to  carry  it  into  the  part- 
nership account  between  them,  no  doubt 
the  general  rule  would  apply.  That 
was  the  case  in  Fromont  v.  Coupland, 
2  Bing.  170.  But  such  is  not  the  fact 
here."  See  also  Clark  v.  Dibble,  16 
Wend.  601  ;  Grigsby  v.  Nance,  3  Ala. 
347.  —  And  after  a  dissolution,  an  ac- 
tion will  lie  between  partners  to  recover 
a  balance  due,  on  an  implied  promise. 
Wilby  V.  Phinney,  15  Mass.  116  ;  Pope 
V.  Randolph,  13  Ala.  214.  —  So  to  reco- 
ver back  money  paid  by  mistake  on  an 
adjustment  of  the  partnership  concerns. 
Bond  V.  Hays,  12  Mass.  34;  Chase  v. 
Garvin,  19  Maine,  211. 

(6)  Clark  v.  Dibble,  16  Wend.  601  ; 
Gibson  v.  Moore,  6  N.  H.  R.  547 ;  Mc- 
Coll  V.  Oliver,  1  Stew.  510;  Fanning  v. 
Chadwick,  3  Pick.  420  ;  Gulick  v.  Gu- 
lick,  2  Green,  578. 


[147] 


141' 


THE   LAW   OF   CONTRACTS. 


[book  I. 


maintained  ;  for  tiie  same  party  cannot  be  plaintiff  and  de- 
fendant of  record,  in  the  same  action,  (c) 


*  SECTION  VII. 


OF   THE    SHARING    OF   LOSSES. 


Though  partnerships  are  usually  formed  by  a  participation 
of  both  profits  and  losses,  it  may  be  agreed  that  a  partner 
shall  have  his  share  of  the  profits  and  not  be  liable  for  losses, 
and  this  agreement  is  valid  as  between  the  parties.  And  this 
agreement  will  be  equally  efficacious  whether  stated  in  arti- 
cles, or  proved  by  circumstances  or  otherwise.  For  the  part- 
ners, inter  se,  may  make  what  bargain  they  will.  But  no 
such  agreement  will  prevent  such  partner  from  being  liable 
for  the  debts  of  the  partnership,  unless  the  creditor  knew  of 
this  bargain  between  the  partners,  and  with  this  knowledge 
gave  the  credit  to  the  other  partners  only,  {d) 


(c)  Portland  Bank  v.  Hvde,  2  Fairf. 
196;  Tindal  v.  Bright,  Minor,  10.3; 
Mainwaring  v.  Newman,  2  B.  &  P.  120; 
Neale  v.  Tiirton,  4  Bing.  149;  Teague 
V.  Hubbard,  8  B.  &  C.  345 ;  Bosanquet 
V.  Wray,  6  Taunt  597.  —  But  see  Rose 
V.  Poulton,  2  Bai-n.  &  Ad.  822,  where 
the  facts  were  as  follows  —  By  an  in- 
denture between  A.,  and  B.  and  his  wife, 
and  C,  of  one  pai't,  and  D.  and  E.  and 
the  same  C,  of  another  part,  it  was  re- 
cited that  F.,  also  party  to  the  deed,  had 
requested  to  have  a  certain  farm  given 
up  to  him,  in  which  B.'s  wife  was  inte- 
rested, he  F.  giving  sureties,  namely,  the 
said  D.,  E.  and  C.  for  payment  of  an 
annuity  to  B."s  wife ;  and  it  was  there- 
upon witnessed  that  in  consideration  of 
the  covenants  thereinafter  entered  into 
by  A-,  B.  and  his  wife,  and  C,  and  of 
lOs.,  the  said  D.,  E.,  and  C,  and  each 
and  every  of  them,  covenanted  witli  A., 
B.  and  his  wife,  and  C,  to  pay  the  annu- 
ity. There  followed  covenants  by  A., 
B.  and  his  wife,  and  C,  severally,  for 
quiet  enjoyment,  and  for  executing  an 
assignment  to  F.  when  required.  The 
deed  was  signed  and  sealed  by  D.,  E., 
and  C,  and  by  F.,  but  not  by  A.  or  B. 
In  an  action  brought  by  A.  and  B.,  after 

[148] 


the  death  of  C,  for  breach  of  the  cove- 
nant to  pay  the  annuity  :  Held,  First, 
that  the  omission  of  A.  and  B.  to  exe- 
cute the  deed  did  not  disable  them  from 
suing  upon  it;  that  such  omission  did 
not  amount  to  a  total  failure  of  consi- 
deration for  the  covenant  sued  upon, 
(supposing  such  total  failure  to  be  an 
answer  to  the  action,)  and  that  the  cove- 
nant to  pay  the  annuity,  and  those  for 
quiet  enjoyment  and  for  assigning,  were 
not  mutual  and  dependent.  Secondly, 
that  at  least  after  C.'s  death,  A.  and  B. 
might  sue  D.'s  executors  (D.  and  E.  be- 
ing also  dead)  for  non-payment  of  the 
annuity,  though  the  covenant  for  such 
payment  was  entered  into  both  by  and 
to  C. — And  where  one  who  is  a  mem- 
ber of  two  firms  makes  a  note  in  the 
name  of  one  of  the  firms,  payable  to  a 
member  of  the  other  firm,  the  payee  may 
sue  and  recover  upon  such  note.  Moore 
V.  Gano,  12  Ohio,  300.  See  Baring  v. 
Lvman,  1  Story,  396  ;  Banks  v.  Mitchell, 
8  Yerger,  HI. 

(d)  See  Gilpin  v.  Enderbev,  5  Bam. 
&  Aid.  954 ;  Bond  r.  Pittard,  3  Mees.  & 
Welsh.  357.  In  this  case,  A.  and  B. 
carried  on  business  together  as  solicitors 
in  partnership,  and  held  themselves  out 


CH.   XII.] 


PARTNERSHIP. 


142 


SECTION  VIII. 
OF   SECRET   AND   DORMANT   PARTNERS. 

A  secret  partner  is  one  not  openly  and  generally  declared 
to  be  a  partner,  (e)  and  a  dormant  partner  is  strictly  one  who 
takes  no  share  in  the  transaction  or  control  of  the  partnership 
business  ;  but  it  is  often  held  to  mean  one  whose  name  is  not 
publicly  mentioned ;  and  the  phrases  secret  partner  and  dor- 
mant partner  are  sometimes,  but  inaccurately,  used  as  synony- 
mous, if)     A  dormant  partner  is  liable  when  discovered.  {^) 


as  such ;  and  the  defendant  employed 
them  in  that  capacity.  By  the  agree- 
ment under  which  A.  and  B.  entered  into 
business  together.  B.  was  to  receive 
annually  out  of  the  profits  the  sum  of 
300/.,  but  he  was  not  to  be  in  any  man- 
ner liable  to  the  losses  of  the  business, 
and  was  to  have  a  lien  on  the  profits  for 
any  losses  he  might  sustain  by  reason  of 
his  liability  as  a  partner  :  Held^  that  A. 
and  B.  were  properly  joined  as  plaintiifs 
in  an  action  for  work  and  labor,  as  tlie 
money,  when  recovered,  would  be  the 
joint  property  of  both  until  tlie  accounts 
were  ascertained  and  the  division  took 
place.  In  this  case  Bolland,  B.,  said, 
"  It  has  been  fully  established  by  nume- 
rous cases  both  at  law  and  in  equity, 
that  third  parties  are  not  affected  by 
the  secret  contracts,  inter  se,  of  persons 
holding  themselves  out  and  contracting 
as  partners.  That  doctrine  is  fully  gone 
into  in  the  case  of  Waugh  i\  Carver,  2 
H.  Bl.  246,  by  Lord  Chief  Justice  (Eyre) 
De  Grey,  and  is  there  distinctly  laid 
down."  See  Perry  v.  Randolph,  6  Sm. 
&  Marsh.  335;  Hazard  v.  Hazard,  1 
Story,  374 ;  BaiTett  v.  Swan,  1 7  Maine, 
180;  Pollard  v.  Stanton,  7  Ala.  761; 
Alderson  v.  Pope,  1  Camp.  404,  note ; 
Minnit  v.  Whinery,  5  Bro.  P.  C.  489. 
See  also  Brown  v.  Leonard,  2  Chitty, 
120. 

(e)  In  United  States  Bank  v.  Binnej', 
5  Mason,  186,  the  following  definition  of 
a  secret  partnership  is  given  :  "  I  under- 
stand the  common  meaning  of  secret 
partnership  to  be  a  partnership  where 
the  existence  of  certain  persons  as  part- 
ners is  not  avowed  or  made  known  to 
the  public  by  any  of  the  partners.  Where 

13* 


all  the  partners  arc  publicly  made 
known,  whether  it  be  by  one  or  all  the 
partners,  it  is  no  longer  a  secret  part- 
nership."    Sec  S.  C.  5  Peters,  529. 

(/)  In  Mitchell  v.  Dall,  2  Harr.  & 
Gill,  159,  it  is  said  that  in  the  legal  ac- 
ceptation of  the  term  dormant,  as  applied 
to  partners  in  trade,  every  partner  is 
considered  dormant,  unless  his  name  is 
mentioned  in  the  firm,  or  embraced  un- 
der general  terms  in  the  name  of  the 
firm  or  company.  See  to  the  same  ef- 
fect Kelley  v.  Hurlburt,  5  Cowen,  534 ; 
Desha  v.  Holland,  12  Ala.  513.— The 
law  relative  to  dormant  partners  seems 
to  be  confined  to  trade  and  commerce, 
and  does  not  extend  to  speculations  in 
the  sale  and  purchase  of  land.  Pitts  v. 
Waugh,  4  Mass.  424 ;  Smith  v.  Burn- 
ham,  3  Sumner,  470.  But  see  Brooke 
V.  Washington,  8  Grattan,  248,  contra. 

{(j)  Robinson  v.  Wilkinson,  3  Price, 
538.  In  this  case  Wilkinson  had  been 
a  dormant  partner  in  a  ship  with  one 
Cay,  but  had  retired.  Robinson,  the 
plaintiff,  supplied  the  ship  and  the  cap- 
tain with  stores  and  cash  on  account  of 
the  ship,  to  the  amount  of  £1,000  and 
upwards.  The  amount  of  the  debt  at 
the  time  of  Wilkinson's  retirement  was 
£401  16s.  Id.  Cay  having  become  in- 
solvent, the  Court  of  Exchequer  held 
clearly  that  Robinson  was  entitled  to 
recover  against  Wilkinson  the  total  sura 
of  £401  16s.  Id.,  (with  a  trifling  deduc- 
tion on  a  particular  account,)  although, 
when  the  goods  were  supplied,  Robin- 
son had  no  knowledge  that  Wilkinson 
was  a  partner.  "  A  party,"  said  Graham, 
B.,  "  has  always  a  right  against  a  con- 
cealed partner  ofwhomhehas  previous- 

[149] 


143 


THE  LAW   OF   CONTRACTS. 


[book  I. 


But  not  for  a  debt  contracted  after  he  has  retired,  provided 
the  creditor  never  knew  that  he  was  a  partner,  or  did  know 
that  he  had  retired  before  credit  was  given  to  the  partner- 
ship, (h) 


*  SECTION  IX. 


OF  RETIRING   PARTNERS. 


A  retiring  partner  who  receives  thereafter  a  share  of  the 
profits  is  still  liable ;  but  not  if  he  receives  an  annuity  or 
definite  sum  no  ways  dependent  on  the  profits.  Though  the 
remaining  partners  may  look  to  the  partnership  fund  or  to 
their  expected  profits  as  the  means  of  paying  such  annuity, 
it  is  still  only  their  debt  to  him,  and  does  not  involve  him  in 
their  responsibility  to  others,  (i) 


ly  had  no  knowledge,  as  soon  as  he  dis- 
covers him,  unless  that  ignorance  were 
his  own  fault ;  as,  if  he  had  not  used  due 
diligence  in  finding  him." — The  liabili- 
ty of  a  dormant  partner  to  creditors  may 
be  avoided,  however,  by  proof  of  fraud 
in  the  formation  of  the  partnership,  if 
such  dormant  partner  has  received  no 
share  of  the  funds.  Mason  v.  Connell, 
1  Wharton,  381. 

(A)  Grosvenor  v.  Lloyd,  1  Mete.  19. 
In  this  case,  Shaw,  C.  J.,  observed,  "A 
dormant  partner  is  liable  for  debts  con- 
tracted while  he  is  a  partner,  not  be- 
cause credit  is  given  to  him,  but  because 
he  is  in  fact  a  contracting  party,  taking 
part  of  the  profits  of  such  contracts. 
But  when  he  ceases  to  be  in  fact  a  part- 
ner, the  reason  ceiises,  and  he  is  no 
longer  liable.  He  is  not  liable  as  a  con- 
tracting party,  because  the  partnership 
name,  under  which  the  remaining  part- 
ners continue  to  transact  business,  no 
longer  includes  him,  though  that  name 
may  remain  the  same ;  and  he  is  not 
liable  as  holding  out  a  false  credit  for 
the  firm,  because  the  case  supposes  that 
he  is  not  known  as  a  partner,  and  there- 
fore the  firm  derives  no  credit  whilst  he 
remains  a  secret  or  dormant  partner. 
No  customer,  therefore,  or  other  person 
dealing  with  the  firm  can  be  disappoint- 
ed in  any  just  expectations,  if  he  silently 
withdraws  from  the  firm.     A  very  dif- 

[150] 


ferent  rule  would  apply  where  one  had 
been  a  known  or  ostensible  partner,  and 
held  himself  out  as  such."  See  also 
Kelly  V.  Hurlburt,  5  Cowen,  534  ;  Evans 
V.  Drummond,  4  Esp.  89  ;  Armstrong  v. 
Hussey,  12  Serg.  &  Rawle,  315  ;  Scott  v. 
Colmesnil,  7  J.  J.  Marsh.  416;  Benton 
V.  Chambei'lain,  23  Verm.  711 ;  Edwards 
V.  McFall,  5  Louis.  Ann.  167;  Brooke 
V.  Enderby,  2  Brod.  &  Bing.  71  ;  Car- 
ter V.  Whalley,  1  Barn.  &  Ad.  11.— 
It  is  a  question  for  the  jury  whether 
a  person  was  a  dormant  partner,  and 
his  interest  not  in  fact  generally  known, 
so  as  to  excuse  notice  of  his  retirement 
from  the  firm.  Sknio,  C.  J.,  in  God- 
dard  v.  Pratt,  16  Pick.  429. 

(/f  See  Young  v.  Axtell,  2  H.  Bl. 
242;  Holyland  v.  De  Mendez,  3  Mer. 
184.  There  it  was  agreed  on  the  disso- 
lution of  a  partnership,  that  the  con- 
tinuing partner  should,  in  consideration 
of  an  assignment  to  him  of  the  partner- 
ship property,  including  a  lease  of  the 
premises  on  which  the  business  was  car- 
ried on,  secure  to  the  retiring  partner 
the  payment  of  an  annuity,  "  or  in  case 
he  should  at  any  time  after  the  expira- 
tion of  the  then  existing  lease  be  dis- 
possessed of  and  compelled  to  quit  the 
premises,  without  any  collusion,  con- 
trivance, act,  or  default  of  his  own." 
The  continuing  partner  obtained  a  re- 
newal of  the  lease,  and  afterwards  be- 


CH.  XII.] 


PARTNERSHIP. 


►144 


When  a  partner  retires  from  a  firm,  notice  is  usually  given 
by  public  advertisement,  or  by  letters  to  the  customers  of  the 
*firm,  or  both.  A  party  having  such  notice  cannot  hold  the 
retiring  partner  to  a  responsibility  for  a  credit  given  to  the 
firm  after  such  retirement  and  notice,  (j)     It  also  seems  to 


came  bankrupt,  and  the  renewed  lease 
passed  under  the  assignment  of  his  es- 
tate. It  was  held,  that  this  was  not 
such  an  eviction  or  dispossession  as  was 
contemplated  by  the  agreement,  in  the 
event  of  which  the  annuity  was  to  cease. 
Under  the  same  circumstances,  namely, 
of  a  partner  retiring  and  leaving  his 
capital  in  the  firm,  it  will  be  necessarily 
unsafe  to  reserve  a  usurious  rate  of  in- 
terest for  the  capital  left  in  the  firm  ; 
though  this  observation,  perhaps,  only 
applies  to  a  usurious  agreement  in  the 
deed  of  dissolution  itself.  For  where, 
by  a  deed  of  dissolution  between  A.,  B., 
and  C,  A.  and  B.  covenanted  to  re- 
place C's  share  of  the  capital  by  instal- 
ments, and  afterwards  a  new  agreement 
was  entered  into  by  parol,  which  secured 
a  usurious  rate  of  interest  to  C,  it  v/as 
held  that  the  effect  of  considering  the 
latter  agreement  void,  was,  not  to  inva- 
lidate, but  to  set  up  tiie  original  agree- 
ment and  make  that  binding  on  the  par- 
ties, for  that  the  second  agreement  was 
not  a  performance  of,  but  a  substitution 
for,  the  former  transaction.  See  Parker 
V.  Ramsbottom,  3  B.  &  C.  257. 

(_;')  Notice  of  the  withdrawal  of  a 
dormant  partner  is  not  necessary.  Ma- 
gill  V.  Merrie,  5  B.  Monr.  168  ;  Kenne- 
dy V.  Bohannon,  11  B.  Mon.  120  ;  Scott 
V.  Colmesnil,  7  J.  J.  Marsh.  416.  — But 
it  is  otherwise  as  to  ostensible  partners. 
To  affect  a  creditor  who  has  formerly 
traded  with  the  firm,  the  notice  of  the 
retirement  of  an  ostensible  partner  must 
be  proved  to  have  been  actual.  Pren- 
tiss V.  Sinclair,  5  Verm.  149  ;  Simonds 
V.  Strong,  24  Verm.  642 ;  Wardwell 
V.  Haight,  2  Barb.  Sup.  Ct.  R.  549; 
Hutchins  v.  Hudson,  8  Humph.  426  ; 
Graves  v.  Merry,  6  Cowen,  705  ;  Vernon 
V.  Manhattan  Company,  17  Wend.  527. 
In  Pitcher  v.  Barrows,  17  Pick.  365, 
Shaw,  C.  J.,  said,  "  It  has  sometimes 
been  held  that  those  who  have  been 
dealers  and  customers  of  a  firm  shall 
have  actual  notice  of  a  dissolution  ; 
but,"  he  adds,  "  that  may  be  thought  too 
strict.  But  it  has  always  been  held,  that 
in  default  of  actual  and  personal  notice 


to  a  party,  public  notice  in  some  news- 
paper shall  be  deemed  necessary."  "The 
doctrine,"  says  Mr.  Chancellor  Kent, 
"  seems  to  be  that  merely  taking  a  news- 
paper in  which  a  notice  is  contained  is 
not  sufficient  to  charge  a  party,  for  it  is 
not  to  be  intended  that  he  reads  the  con- 
tents of  all  the  notices  in  the  newspa- 
pers which  iie  may  chance  to  take.  The 
inference  of  constructive  notice  from 
such  a  source  was  strongly  exploded  in 
some  of  the  above  cases."  (3  Kent,  5th 
cd.  67,  note.)  Watkinson  v.  Bank  of 
Pennsylvania,  4  Whart.  482.  But  see 
Jenkins  v.  Blizard,  1  Stark.  418.  A 
newspaper  notice  accidentally  reaching 
a  bank  director  is  not  equivalent  to  ac- 
tual notice  to  the  bank  ;  but  it  seems  it 
would  be,  if  the  notice  was  actually 
served  on  him,  with  directions  to  com- 
municate it  to  the  board.  National 
Bank  v.  Norton,  1  Hill  (N.  Y.)  572.— 
Publishment  of  the  dissolution  in  a 
newspaper  will  not  per  se  be  sufficient, 
although  it  may  with  other  circumstan- 
ces go  to  the  jury  as  evidence  of  actual 
notice.  See  Graham  ik  Hope,  1  Peake, 
154;  White  v.  Murphy,  3  Rich.  369; 
Hutchins  r.  Bank  of  Tennessee,  8  Hump. 
418  ;  Shurlds  v.  Tilson,  2  McLean,  458; 
Grinnan  v.  Baton  Rouge  Mills  Co.,  7 
Louis.  Ann.  638.  As  to  all  persons  who 
have  had  no  dealings,  and  given  no  credit 
to  tlie  firm,  publishment  of  the  dissolu- 
tion is  sufficient.  Lansing  v.  Gaine,  2 
Johns.  300;  Prentiss  v.  Sinclair,  5  Verm. 
149  ;  Shurlds  v.  Tilson,  2  McLean,  458; 
Watkinson  c.  Bank,  of  Pennsylvania,  4 
Wharton,  482.  In  Mowatt  v.  Howland, 
3  Day,  353,  two  partners  of  a  firm  re- 
sided in  New  York,  and  the  third  in 
Norwich,  in  Connecticut,  their  usual 
place  of  doing  business.  Upon  disso- 
lution, notice  was  given,  for  several 
weeks  successively,  in  two  newspapers, 
one  printed  at  Norwich,  and  the  other 
at  New  London,  in  the  vi(nnity  of  Nor- 
wich. One  of  the  New  York"  partners 
afterwards  indorsed  a  bill  of  e.xcliange 
in  New  York  with  the  company  name, 
but  whether  the  indorsee  had  or  had  not 
actual  notice  of  the  dissolution,  did  not 

[151] 


145*  THE  LAW  OF  CONTRACTS.  [BOOK  I. 

be  settled  that  such  retiring  partner  is  not  held  to  a  creditor 
who  has  no  knowledge  of  such  retirement,  provided  the  re- 
tirement was  actual  and  in  good  faith,  and  the  retiring  part- 
ner did  all  that  was  usual  or  proper  to  give  the  public  and 
customers  notice  of  his  retirement.  But  if  the  retiring  part- 
ner gives  no  such  notice,  then  a  customer  of  the  firm  accus- 
tomed to  trade  with  the  firm  on  the  responsibility  of  all  the 
partners,  including  him  who  has  retired,  and  not  knowing  of 
his  retirement,  may  hold  him  for  a  debt  contracted  with  the 
firm  after  his  retirement,  (k)  Whether  a  neiv  customer  can 
*so  hold  him  is  not  so  certain.  Generally,  he  cannot ;  but  if 
the  new  customer  was  brought  to  the  firm  by  the  responsibility 
of  this  partner,  which  responsibility  he  knew  to  have  existed, 
and  had  a  right  to  suppose  existed  still,  which  right  grew  out 
of  the  laches  of  the  retiring  partner,  and  no  negligence  or 
want  of  diligence  was  imputable  to  the  creditor,  it  would 
seem  on  general  principles  that  the  creditor  had  a  right  to  hold 
him  responsible  as  a  partner.  It  would  be  difficult  to  distin- 
guish on  principle  such  a  case  from  that  of  a  former  customer 
creating  a  new  debt. 

SECTION  X. 
OP  NOMINAL  PARTNERS. 

A  nominal  partner,  or  one  held  out  to  the  world  as  such 
without  actual  participation  of  profit  and  loss,  is  of  course 
held,  generally,  as  responsible  for  the  debts  of  the  partnership. 

appear,  nor  did  it  appear  that  he  had  still  liable  for  debts  contracted  subse- 

ever  been  a  correspondent  of  the  com-  quently  to  his  retirement,  with  persons 

pany.     It  was  held,  that  these  facts  con-  wlio  knew  of  his  previous  connection, 

stituted  reasonable  notice  to  him,  and  to  but  who   had   no   notice  of  his  retire- 

every  person  not  a  correspondent  of  the  ment.     Davis  v.  Allen,  3  Comst.  168. 

company.  The  principle  upon  which  this  respon- 

(k)  Parkin  v.  Carruthers,  3  Esp.  248 :  sibility  proceeds,  is  the  negligence  of  the 

Graham  v.  Hope,  1  Peake,   154;  Ber-  partners  in  leaving  the  world  in  igno- 

nard  v.  Torrance,  5  Gill  &  Johns.  383 ;  ranee  of  the   fact   of  dissolution,  and 

Lucas  V.  Bank  of  Darien,  2  Stew.  280 ;  leaving  strangers  to  conclude  that  the 

Stables  v.  Eley,  1  Carr.  &  Payne,  614  ;  partnership  is  continued,  and  to  bestow 

Taylor  v.  Young,  3  Watts,  339 ;  Ami-  faith  and  confidence  on  the  partnership 

down  V.  Osgood,  24  Verm.  278;  Sim-  name  in  consequence  of  that  belief.    See 

onds  V.  Strong,  24  Verm.  642  ;  Burgan  3  Kent's  Com.  66  ;  Princeton  v.  Gulick, 

r.  Lyell.  2  Mich.  102.    And  a  partner  1  Hairison,  161. 
whose  name  is  not  used  in  a  firm,  is 

[152] 


CH.  XII.] 


PARTNERSHIP. 


146 


But  it  has  been  determined  that  where  two  or  more  persons 
appear  to  the  public  as  partners,  and  there  is  a  stipulation 
between  them,  that  one  of  them  shall  not  have  any  share  of 
the  profits,  nor  pay  any  portion  of  the  losses,  he  is  not  liable 
to  the  creditor  of  the  firm  who  before  giving  credit  knew  of 
this  stipulation  ;  because  such  creditor  has  no  right  to  fix  upon 
him  a  responsibility  against  his  bargain  and  intention,  which 
bargain  and  intention  were  known  to  the  creditor,  (l)  An  ad- 
*mission  by  a  person  that  he  is  a  partner  in  a  firm  is  not  con- 
clusive against  him,  though  made  to  the  creditor,  if  made 
after  the  debt  for  which  it  is  sought  to  make  him  liable, 
was  contracted ;  otherwise,  if  made  before  the  credit  is 
given,  (m) 


(l)  Alderson  v.  Pope,  1  Camp.  404, 
note,  and  Lord  Ellenhorough  in  that  case 
held  that  notice  to  one  member  of  a 
firm,  of  such  a  stipulation,  was  notice  to 
the  whole  partnership.  It  was  also  held 
in  Batty  r.  McCundie,  3  Carr.  &  Payne, 
202,  that  if  one  of  several  partners  be 
concerned  in  preparing  the  prospectus 
of  a  projected  newspaper,  which  pro- 
spectus states  that  he  and  others  will 
act  as  treasurers  and  managers,  and  also 
that  the  subscribers  are  not  to  be  part- 
ners, nor  to  be  answerable  for  more  than 
their  subscription  ;  and  such  partner  be 
also  aware,  that  a  particular  individual 
is  to  be  sole  nominai  proprietor;  the 
firm  of  which  such  a  partner  is  a  mem- 
ber, (although  he  has  not  taken  any 
share  in  the  paper,)  cannot  sue  the  sub- 
scribers who  have  taken  shares,  for  the 
price  of  goods  furnished  for  the  paper. 
See  also  Burness  v.  Pennell,  2  Ho.  of 
Lords  Cases,  497. 

(m)  Ridgway  y.  Philip,  1  Cr  ,  Mee.  & 
Ros.  415.  In  this  case,  the  plaintiff  con- 
tracted with  one  Brown,  the  patentee 
of  a  draining  machine,  for  the  erection 
of  one  of  those  machines  on  the  plain- 
tiff's lands  in  Cambridgeshire.  The 
draft  of  the  agreement  being  drawn  up 
in  the  name  of  Brown  &  Co.,  the  plain- 
tiff asked  Brown  what  other  persons  be- 
sides himself  composed  the  firm,  upon 
which  Brown  wrote  on  the  back  of  the 
draft,  "  John  Broadhurst,  Esq.,  and  Dr. 
Wilson  Philip."  The  contract  being 
broken,  the  plaintiff  brought  his  action 
against  Philip  and  Broadhurst ;  but  pre- 
viously to  the  action,  his  son  called  on 
the   defendant  Broadhurst.  and  asked 


him  whether  Brown  was  correct  in  mak- 
ing the  indorsement  upon  the  draft  of 
the  agreement,  to  which  Broadhurst  re- 
plied in  the  affirmative  and  stated  that  he 
had  bought  his  original  interest  from  the 
other  defendant.  Dr.  Philip.  Evidence 
was  also  given  at  the  trial,  that  while 
the  engine  was  in  pi'ogress,  he  attended 
very  frequently  at  the  manufactory  to 
inquire  how  it  was  going  on,  and  that 
he  gave  advice  and  made  suggestions 
with  regard  to  its  construction.  In  an- 
swer to  this,  an  agreement  or  license 
from  Brown  and  the  other  parties  inte- 
rested in  the  patent,  to  Broadhurst,  was 
given  in  evidence  on  the  part  of  the  lat- 
ter, autliorizing  Broadhurst  to  use  the 
patent  for  the  erection  of  engines  in  cer- 
tain parts  of  Cornwall  only,  and  it  was 
contended  that  the  admissions  of  Broad- 
hurst were  to  be  taken  with  reference  to 
the  interest  which  he  thus  possessed  in 
the  invention,  and  not  to  any  participa- 
tion either  in  the  patent  generally,  or  in 
the  particular  transaction  in  question. 
Gaselee,  J.,  who  tried  the  action,  left  it 
to  the  jury  to  say  whether  Broadhurst, 
at  the  time  he  made  the  admission,  was 
under  a  mistake  ;  and  whether  the  acts 
he  was  proved  to  have  done  did  or  did 
not  afford  a  sufficient  ground  for  sup- 
posing it  to  be  a  mistake  ;  and  with  re- 
gard to  those  acts,  he  left  it  to  the  jury 
to  say  whether  they  were  referable  to  a 
partnership  in  the  patent  in  general,  or 
in  this  particular  transaction.  The  jury 
found  a  verdict  for  the  defendants,  on 
the  ground  that  Broadhurst  was  not  a 
partner,  and  the  Court  of  Exchequer 
refused  to  grant  a  new  trial. 
[153] 


147* 


THE   LAW   OP   CONTRACTS. 


[book  I. 


SECTION  XI. 
WHEN   A   JOINT   LIABILITY   IS   INCURRED. 

Where  there  is  no  joint  purchase  or  joint  incurring  of  debt, 
but  a  purchase  by  one  to  whom  alone  credit  is  given,  a  sub- 
sequent joint  interest  in  the  property  purchased,  and  in  the 
business  and  profits  depending  upon  it,  carries  no  liability  for 
the  original  debt,  (n)  And  where  many  persons  join  in  an  ad- 
*venture,  each  to  contribute  his  share,  each  is  liable  alone  for 
his  share  to  the  person  from  whom  he  bought  it.  No  part- 
nership arises  until  the  several  shares  are  brought  together 
and  mixed  up  in  one  common  adventure,  (o)     But  if  the  bar- 


(n)  Persons  are  not  to  be  held  jointly 
liable  upon  a  contract  as  partners,  un- 
less they  have  a  joint  interest  existing 
at  the  time  of  the  formation  of  the  con- 
tract. The  case  of  Young  r.  Hunter, 
4  Taunton,  582,  well  illustrates  this 
principle.  In  an  action  for  goods 
sold  and  delivered,  two  of  tlie  de- 
fendants, Hunter  and  Rayney,  suffered 
judgment  to  go  by  default ;  the  other 
defendants,  Iloffliam  &  Co.,  pleaded 
the  general  issue.  On  trial  it  appeared 
that  Hunter  and  Rayney  had  bought 
goods  of  the  plaintiffs  and  others,  -n-hich 
they  intended  to  ship  for  the  Baltic,  and 
the  defendants  Hotfham  &  Co.  (not 
otherwise  partners  of  Hunter  &  Co) 
were  afterwards  allowed  to  join  in  the 
adventure,  and  to  have  a  fifth  .share  up- 
on the  goods  being  put  on  board.  The 
plaintifts  knew  nothing  of  Hoffham  &, 
Co.,  but  sold  the  goods  to  Hunter  &  Co. 
only.  The  question  was  whether  this 
was  a  case  of  common  sleeping  partners. 
Mansfield,  C.  J.,  directed  the  jury  to  find 
for  defendant,  with  liberty  for  plaintiff, 
to  move  for  a  new  trial ;  a  rule  nisi  was 
obtained  on  the  ground  that  Hoffham 
&  Co.  having  had  the  benefit  of  the 
goods,  were  liable  to  pay  for  them, 
though  they  were  originally  furnished 
to  Hunter  &  Co.  only.  On  a  new  trial, 
Mansfield,  C.  J.,  continued  of  the  same 
opinion.  Heath.  J.  "  The  proposition 
of  the  plaintiff's  counsel  that  if  it  be 
shown  that  at  any  one  period  of  the 
transaction  there  was  a  partnership  sub- 
sisting, it  was  therefore  to  be  inferred 
[154] 


that  there  had  been  a  partnership  in  the 
particular  original  purchase,  is  wholly 
unfounded."  Chambre,  J.,  was  of  the 
same  opinion.  Gibhs,  J.,  "The  only 
possible  ground  for  a  new  trial  would 
be,  if  the  plaintiffs  could  show  that  at 
tlie  time  of  the  purchase  of  the  goods 
from  the  plaintiflTs,  Hoffham  &  Co.  and 
Hunter  &  Raj'uey  were  concerned  in 
that  purcliase  on  their  joint  account. 
It  only  appears  that  they  were  so  inte- 
rested at  the  time  of  shipment.  It  is 
not  to  be  inferred  from  the  fact  that 
Hoffham  &  Co.  were  interested  at  the 
time  of  shipment,  that  they  were  inte- 
rested at  the  time  of  the  purchase.  It 
is  for  the  plaintiffs  to  make  it  out  by 
evidence.  If  parties  agree  among  them- 
selves that  one  house  shall  buy  goods, 
and  let  the  other  into  an  interest  in  them, 
that  other  being  unknown  to  the  vendor; 
in  such  a  case  the  vendor  could  not  re- 
cover against  him,  though  such  other 
person  would  have  the  benefit  of  the 
goods.  On  this  and  other  reasons,  I 
think  the  present  verdict  ought  not  to 
be  disturlicd."  — This  principle  is  further 
illustrated  by  many  cases,  showing  that 
where  one  on  his  individual  credit  alone 
borrows  money  for  the  use  of  the  firm 
the  firm  will  not  be  liable  merely  be- 
cause the  money  came  to  their  use. 
See  Siffkin  v.  Walker,  2  Camp.  308; 
Graeff  v.  Hitchman,  5  Watts,  454 ; 
Emly  V.  Lye,  15  East,  7  ;  Green  v.  Tan- 
ner, 8  Mete.  411 ;  Ripley  v.  Kingsbury, 
1  Day,  1 50,  note. 

(o)    This  principle    is    fully    esta- 


CH.  XII.]  PARTNERSHIP.  *148-*149- *150 

•gain  was  for  a  joint  purchase  and  joint  adventure,  there  is 
at  once  a  joint  liability  for  the  original  purchase,  although  it 
was  *made  by  one  of  the  partners  alone,  and  he  alone  was 
known  *to  be  interested,  and  credit  was  given  to  him 
alone,  (p)  Because  the  liability  of  a  partner  springs  either 
from  his  holding  himself  oat  to  the  world  as  a  partner,  or 
from  his  participation  in  the  business  and  its  profit  or 
loss.     If  these  two  causes  meet,  as  is  usually  the  case,  they 


blished  by  the  case  of  Saville  v.  Kobert- 
son,  4  Term  R.  720.  See  also  Gouthwaite 
V,  Duckworth,  1 2  East.  421 ,  where  Saville 
V.  Eobertson  is  distinguished.  Lord 
EUenhorough,  in  Gouthwafte  v.  Duck- 
worth, says  :  —  "  The  case  of  Saville  v. 
Robertson  does  indeed  approach  very 
near  to  this  ;  but  the  distinction  is,  that 
there  each  party  brought  his  separate 
parcel  of  goods,  which  were  afterwards 
to  be  mixed  in  the  common  adventure, 
on  board  the  ship  ;  and  till  that  admix- 
ture the  partnership  in  the  goods  did 
not  arise.  But  here  the  goods  in  ques- 
tion were  purchased  in  pursuance  of  the 
agreement  for  the  adventure,  of  which 
it  had  been  before  settled  that  Duck- 
worth was  to  have  a  moiety."  And 
Mr.  Justice  Bayley  observed,  that,  "  in 
Saville  V.  Robertson,  after  the  purchase 
of  the  goods  made  by  the  several  adven- 
turers, there  was  a  still  further  act  to  be 
done,  which  was  the  putting  them  on 
board  the  siiip  in  which  they  had  a  com- 
mon concern,  for  the  joint  adventure ; 
and  until  that  further  act  was  done,  the 
goods  purchased  by  each  remained  the 
separate  projierty  of  each.  But  here,  as 
soon  as  the  goods  were  purchased,  the 
interest  ot  the  three  attached  in  them  at 
the  same  instant,  by  virtue  of  the  pre- 
vious agreement."  —  See  also  Post  v. 
Kimberly,  9  Johns.  470,  in  which  it  was 
held,  that  there  was  no  partnership  be- 
tween A.  and  B.,  and  C.  and  D.,  in  the 
outward  cargo,  except,  perhaps,  so  far 
as  related  to  the  transport  and  selling  of 
it;  for  that,  although  the  whole  cargo 
was  shipped  on  boai'd  the  same  vessel, 
yet  it  was  clear  that  each  house  pur- 
chased and  put  on  board  its  aliquot 
part,  without  the  concern  or  responsi- 
bility of  the  other. — Brooke  v.  Evans, 
5  Watts,  196  ;  Simms  v.  Willing,  8 
Scrg.  &  Rawle,  103. 

[p)  Thus,  where  three  persons  were 
engaged  in  a  joint  speculation,  for  the 
purchase  and  importation  of  corn,  but 


no  partnership  fund  was  raised  for  the 
speculation,  and  the  parties  met  the  ex- 
penses in  thirds,  and  two  only  of  the 
three  had  the  management  of  the  specu- 
lation, one  of  these  two  being  the  con- 
signee and  the  other  the  salesman  of 
the  corn  ;  it  was  nevertheless  very  truly 
said,  that,  if  there  had  been  a  claim  in 
that  case  by  the  seller  of  the  corn,  no 
doubt  he  would  have  been  entitled  to 
proceed  against  all  the  parties,  and 
might  have  called  on  them  all  for  pay- 
ment. Smith  V.  Craven,  1  Cromp.  & 
Jerv.  500.  Upon  the  same  principles, 
where  A.  and  others  agreed  to  become 
partners  in  the  purchase  of  fifteen  shares 
of  a  copper  adventure,  and  in  pursuance 
of  the  agreement,  A.  alone,  and  in  his 
own  name,  contracted  for  the  purchase 
of  the  shares,  and  paid  a  deposit,  to 
which  the  others  contributed  ;  it  was 
held  that  the  others,  as  well  as  A.,  were 
bound  by  this  contract,  and  that,  upon 
an  action  and  verdict  against  A.  for 
the  non-performance  of  it,  the  others 
were  bound  to  contribute  their  propor- 
tion of  the  damages  and  costs.  Browne 
V.  Gibbins,  5  Bro.  P.  C.  491.  So, 
where  A.  and  B.,  publishers,  ordered 
certain  stationers,  to  supply  paper  to 
C.  and  D.,  printers,  for  the  purpose  of 
printing  certain  specified  works,  and, 
upon  the  bankruptcy  of  A.  and  B.,  the 
stationers  discovered  that  C.  and  D. 
were  partners  with  A.  and  B.  in  the  pub- 
lication of  those  works,  and  thereupon 
brought  an  action  against  C.  &  D.,  to 
recover  the  value  of  the  paper.  Lord 
Denman,  C.  J.,  told  the  jury  that  if  they 
thought  that,  at  the  time  when  the  goods 
were  furnished,  the  defendants  were 
partners  in  the  concern  for  whose  bene- 
fit they  were  furnished,  the  jury  were 
to  find  for  the  plaintifi's.  The  jury  did 
so  find,  and  the  court  of  King's  Bench 
refused  to  grant  a  new  trial.  Gardiner 
I'.  Childs,  8  Carr.  &  P.  34.5.  —  See  Coope 
V.  Eyre,  1   H.  Bl.  37;  Barton  v.  Han- 

[155] 


151*  THE   LAW    OF   CONTRACTS.  [BOOK   I. 

strengthen  each  other ;  but  either  of  them  alone  is,  in  general, 
sufficient  to  create  this  liablity.  (q)  And  there  is  no  liability 
as  a  partner  where  there  is  neither  a  participation  of  profits, 
nor  any  such  use  of  the  defendant's  name  permitted  by  him 
as  justifies  the  plaintiff  in  selling  to  others  on  his  credit, 
although  there  may  be  in  some  other  way  or  measure  a  com- 
munity of  interest,  (r) 


*  SECTION  XII. 
OF   THE   AUTHORITY   OF   EACH    PARTNER. 

It  is  a  general  rule,  both  throughout  Europe  and  in  this 
country,  that  the  whole  firm  and  all  the  members  of  a  co- 
partnership are  bound  by  the  acts  and  contracts  of  one  part- 
ner with  reference  to  the  partnership  business  and  affairs  — 
such  act  or  contract  being  in  law  the  act  or  contract  of  all. 
This  power  of  each  partner  to  represent  and  to  bind  the  rest, 
and  to  dispose  of  the  partnership  property,  is  sometimes  re- 
garded as  arising  from  the  agency  which  all  confer  on  each  ; 
and  sometimes  from  the  community  of  interest  whereby  no 
partner  owns  any  part  of  the  partnership  property  exclusively 
of  the  rest,  but  each  partner  owns  the  whole,  in  common  with 
all  the  others.  We  think  it  rests  upon  both  of  these  founda- 
tions together.  It  is  true  that  there  may  be  a  copartnership 
where  one  or  more  of  the  partners  has  no  interest  in  the  capi- 
tal stock  by  agreement  among  themselves.  But  even  then  all 
own  together  the  profits,  and  so  much  of  the  funds  or  capital 
of  the  firm  as  consists  of  profits.  Partners  are  undoubtedly, 
in  some  way,  agents  of  each  other.  But  the  principle  of 
agency  alone  will  not  explain  the  whole  law  of  their  mutual 
responsibility.  Out  of  the  combination  of  this  principle  with 
those  which  grow  out  of  the  community  of  property  and  of 

son,  2   Taunt.  49  ;  Sims  v.  Willing,  8  McCord,  427  ;  Milburn  v.  Gayther,  8 

Serg.  &  Rawlc,  103.  Gill.  92.  —  And  a  lay  or  share  in  the 

(q)  Sec   Buckingham  v.   Burgess,    3  proceeds  of  a  whaling  voyage  does  not 

McLean,  364  ;  Markham  v.  Jones,  7  B.  create  a  partnership  in  the  profits  of  the 

Monroe,   456 ;    Benedict    v.   Davis,    2  voyage,  but  is  in  the  nature  of  seamen's 

McLean,  347  ;  Cottrill  v.  Vanduzen,  22  wages,  and  governed  by  the  same  rules. 

Verm.  511.  Coffin  i\  Jenkins,  3  Story,  108. 

(r)  See  Osborne  r.  Brennan,  2  Xott  & 

[156] 


CH.   XII.]  PAETNEKSHIP.  *152 

interest,  the  law  of  partnership  is  formed.  And  this  law  may 
often  be  illustrated  by  a  reference  to  the  principles  of  agency  ; 
but  must  still  be  regarded  as  consisting  of  a  distinct  system 
of  rules  and  principles  peculiar  to  itself. 

So  also  partnership  is  sometimes  spoken  of  as  like  joint- 
tenancy,  with  important  modifications,  or  like  tenancy  in 
common,  with  such  modifications.  In  truth  it  is  a  distinct 
and  independent  relation ;  and  though  it  has  some  of  the 
attributes  of  joint-tenancy,  and  some  of  tenancy  in  common, 
it  is  neither  of  these.  Nor  can  it  be  much  better  illustrated 
by  a  reference  to  either  of  these  modes  of  joint  ownership, 
than  they  would  be  by  a  reference  to  partnership. 

*If  an  action  is  brought  against  sundry  persons  as  copart- 
ners, and  the  fact  of  copartnership  is  admitted,  or  otherwise 
proved,  then  the  admission  of  one  of  the  partners  as  to  any 
matter  between  the  firm  and  another  party  affects  as  evidence 
all  the  partners.  But  where  the  existence  of  the  copartner- 
ship, or  of  the  joint  interest  or  liability,  is  in  dispute,  the  ad- 
mission of  one  person  that  he  is  copartner  with  the  others, 
affects  him  alone,  and  is  not  evidence  of  the  existence  of  the 
copartnership  so  as  to  bind  the  others,  (s)  And  if  two  firms 
are  partners  in  any  transaction,  the  acknowledgment  by  one 
affects  both.     The  effect  of  an  acknowledgment  by  a  partner. 


(s)  Taylori'.  Henderson,  17  S.&Eawle,  also   Hanghey  v.  Strickler,  2  Watts  & 

453;  McPherson  v.  Ratlibone,  7  Wend.  Serg.  411. — And  where  proof  of  tlie  ad- 

216;   Jcwett  v.    Stevens,   6  N.  H.  82.  missions  of  an  alleged  partner  are  offer- 

Jlitchell   r.    Roulstone,    2   Hale,    551.  ed  at  the  trial,  it  is  the  province  of  the 

Nelson  r.  Lloyd,  9  Watts,  22 ;  Cottrill  judge  and  not  of  the  jury  to  pass  upon 

i;.  Vanduzen,  22  Verm.   511;  Gilpin  r.  the   fact  whether   such  person    was   a 

Temple,  4  Harring.  190;  Van  Reims-  partner   or  not.     Harris    v.    Wilson,  7' 

dyk  u.  Kane,  1  Gallison,  630;  Tuttle  v.  Wend.    57.  —  And  where  the  terms  of 

Cooper,  5  Pick.  414;  Whitney  z-.  Ferris,  tlie  agreement  and  the  facts  are  admit- 

10  Johns.  66:  Buckuam  v.  Barnum,  15  ted,  it  is  a  question  of  law  whether  there 

Conn.    68;   Phillips   v.   Purington,    15  was   a  partnership  or  not.     Everitt  v. 

Maine,  425  ;  Jennings  v.  Estes,  1 6  Maine,  Chapman,  6  Conn.  347  ;  Terrill  v.  Rich- 

323 ;   Welsh  v.  Speakman,  8  Watts  &  ards,  1  Nott  &  McCord,  20.— The  fact 

Serg.    257  ;    Haughcy    v.    Strickler,    2  that  the  defendants  do  business  as  part- 

Watts  &   Serg.  411 ;  Porter  v.  "Wilson,  ners,  is  prima  facie  evidence  of  tlieir  co- 

13  Penn.  641. — But  the  existence  of  a  partnership,  and  no  written  articles  need 

partnership  may  be  proved  by  the  sepa-  be  shown.     Bryer  v.  "Weston,  16  Maine, 

rate  admissions  of  all  who  are  sued,  or  261 ;  Gilbert  v.  "Whidden,  20  Maine,  367  ; 

by  the  acts,  declarations,  and  conduct  of  I'orbes    v.    Davison,    11     Verm.    660. 

the  parties,  the  act  of  one,  the  declara-  And   the   adverse  party's  acknowlcdg- 

tions  of  another,  and  the  acknowledg-  ment  that  the  plaintitfs  were  partners  is 

ment  or  conduct  of  a  third.     Welsh  v.  sufficient.     Bisel    v.  Hobbs,  6  Blackf. 

Speakman,  8  Watts  &  Serg.  257.     See  479. 

VOL.   I.  14  [157] 


•152 


THE   LAW   OF   CONTRACTS. 


[book 


where  a  promise  is  barred  by  the  Statute  of  Limitations,  will 
be  considered  when  we  treat  of  that  statute. 

Where  a  joint  business  transaction  consists  in  or  refers  to 
the  purchase  of  goods,  it  is  generally  the  rule  that  the  part- 
nership liability  begins  when  the  goods  are  ordered.  But  this 
may  depend  upon  the  question  whether  the  person  giving  the 
order  was,  at  that  time,  the  agent  of  all  who  are  sought  to  be 
charged.  For  if  he  was  not,  then  they  are  not  liable ;  and  in 
that  case  a  subsequent  naked  acknowledgment  of  the  contract 
will  not  suffice  to  render  them  liable  as  partners,  (t)  For  parties 


(t)  Gouthwaite  v.  Duckworth,  12  East, 
421 ;  Saville  v.  Kobertson,  4  Term  Rep. 
720.  In  Sims  v.  Willing,  8  Serg.  & 
Kawle,  103,  A.,  by  order  of  B.,  chartered 
a  vessel  to  take  a  cargo  of  flour  and  In- 
dian corn  on  freight  from  Philadelphia 
to  Lisbon.  Part  of  the  flour  belonged 
to  A.,  part  to  B.,  and  the  remainder  to 
C. ;  and  the  share  of  each  was  paid  for 
out  of  his  separate  funds.  A.  effected 
a  separate  insurance  on  his  own  interest 
in  the  flour.  The  whole  shipment  was 
consigned  to  C.in  Lisbon,  and  the  whole 
appeared  as  his  property  for  the  purpose 
of  protecting  it  from  British  cruisers. 
Had  the  vessel  arrived  at  Lisbon,  the 
whole  of  the  flour  was  to  have  been 
sold  by  the  consignee,  and  the  net  pro- 
ceeds of  A.'s  intei'cst  remitted,  on  his 
account,  to  his  correspondent  in  London. 
Held,  that  A.,  B.,  and  C.  were  partners, 
and  individually  liable  for  the  whole 
amount  of  a  general  average  due  upon 
the  flour.  —  The  case  of  Post  v.  Kim- 
berly,  9  Johns.  470,  is  a  leading  case  on 
this  subject.  In  that  case,  A.  and  M., 
partners,  owned  three  fourths  of  a  ves- 
sel, and  B.  and  K.,  partners,  owned  the 
one  fourth ;  they  agreed  to  fit  her  out 
on  a  voyage  from  New  York  to  Laguira. 
A.  and  M.  pui'chased  three  fourths  of 
the  cargo,  and  chiefly,  if  not  wholly,  with 
notes  lent  and  advanced  to  them  by  P. 
and  R.,  commission  merehants.  B.  and 
K.  purchased  the  other  fourth  of  the 
cargo,  for  which  they  paid  their  own 
money,  and  shipped  the  same  on  board 
the  vessel ;  but  it  was  not  distinguished 
from  the  rest  of  the  cargo  by  any  par- 
ticular marks  ;  and  the  whole  cargo  was 
to  be  sold  at  Laguira,  for  the  joint  ac- 
count and  joint  benefit  of  the  owners, 
A.  and  M.,  and  B.  and  K.    M.  went 

[158] 


out  as  the  supercargo  and  agent  ;  and 
having  sold  the  cargo  at  Laguira,  he 
invested  the  proceeds  in  a  return  cargo, 
with  which  the  vessel  set  sail  for  New 
York,  but  was  obliged  by  stress  of  wea- 
ther to  put  into  Norfolk,  where  M.  sold 
the  return  cargo,  except  a  small  parcel 
of  coftee,  and  for  the  avails  received 
bills  of  exchange,  which  he  indorsed 
and  remitted,  with  the  parcel  of  coftee, 
to  P.  and  R.,  to  whom  A.  and  M.  were 
jointly  indebted,  and  M.  on  his  private 
account,  to  a  greater  amount,  for  ad- 
vances made  at  the  time  of  the  purchase 
of  the  outward  cargo.  P.  and  R.  col- 
lected the  bills  and  sold  the  coftee  so 
remitted,  and  applied  the  same  to  the 
payment  of  the  debts  so  due  to  them 
from  A.  and  M.  P.  and  R.  had  notice, 
if  not  at  the  time  of  the  shipment  of 
the  outward  cargo,  certainly  before  the 
bills  remitted  by  M.  were  collected,  and 
the  coftee  sold  and  converted  into 
money,  that  B.  and  K.  wxre  interested 
in  and  owned  one  fourth  of  the  cargo,  so 
sold  by  M. ;  and  B.  and  K.  demanded 
of  P.  and  R.  their  proportion  of  the 
proceeds  so  remitted  by  M.,  after  de- 
ducting commissions,  &c.,  but  P.  and  R. 
refused  to  pay  or  deliver  the  same, 
alleging  their  right  to  retain  the  same, 
for  the  payment  of  the  debt  due  to 
them  from  A.  and  M.  It  was  held, 
that  there  was  no  partnerslnp  existing 
between  A.  and  M.  and  B.  and  K.,  so 
as  to  render  the  disposition  of  the  re- 
turn cargo,  by  M.  binding,  as  the  act  of 
a  partner,  on  B.  and  K.  ;  that  there 
was  no  agreement  constituting  a  partner- 
ship in  the  purchase  of  the  outward 
cargo,  or  to  share  jointly  in  the  ultimate 
profit  and  loss  of  the  adventure  ;  and 
though  there  might  be  a  partnership,  so 


en.  xir.] 


PARTNERSHIP. 


*153-*154 


*are  not  jointly  liable  as  partners  upon  any  contract,  unless 
they  had  a  joint  interest  preceding  or  contemporary  with  the 
*formation  of  the  contract.  But  where  two  or  more  agree 
together  to  purchase  goods,  and  agree  also  that  one  shall 
purchase  them  for  the  rest,  here  there  is  a  partnership  pre- 
ceding the  purchase,  and  he  that  buys  is  by  the  agreement 
of  the  others  their  agent,  and  all  are  liable  as  partners,  (u) 

We  have  seen  that  each  partner  is  for  many  purposes  the 
agent  of  all  the  rest,  by  force  of  law,  without  any  express  au- 
thority. Loans,  purchases,  sales,  assignments,  pledges,  or 
mortgages,  effected  by  one  partner  on  the  partnership  account, 
and  with  good  faith  on  the  part  of  the  creditor  or  other  third 
party,  are  binding  on  all  the  firm.  And  this  agency,  as  it 
generally  springs  from  a  community  of  interest,  so  it  is 
generally  limited  by  this  community. 

Among  the  questions  which  have  arisen  as  to  the  limitations 
to  this  general  power,  one,  not  yet  perhaps  perfectly  settled, 
is  as  to  the  power  of  one  partner  to  make  an  assignment  of 
the  whole  property,  to  pay  the  partnership  debts,  (v)   We  think 


far  as  respected  the  transportation  and 
selling  of  the  outward  cargo,  for  the 
joint  profit  and  loss  of  the  owners  j  yet 
it  terminated  in  the  sale  of  the  outward 
cargo :  and  their  interest  in  the  return 
cargo  was  separate  and  distinct,  each 
being  entitled  to  his  respective  propor- 
tion of  it,  without  any  concern  in  the 
profit  and  loss,  which  might  ultimately 
arise ;  and  that  P.  and  K.  not  having 
received  the  bills  in  the  course  of  trade, 
and  knowing  of  tiie  interest  of  B.  and 
K.  before  the  bills  were  paid,  had  no 
right  to  retain  their  share,  for  the  pay- 
ment of  the  debt  of  A.  and  JM.,  bitt 
must  account  to  B.  &  K.,  for  their  pro- 
portion ;  and  that  a  bill  for  a  discovery 
and  account  by  them,  against  P.  and  R., 
was  sustainable  in  the  Court  of 
Chancery  ;  that  court  having  a  concur- 
rent jurisdiction  with  the  courts  of  law 
ia  all  matters  of  account. —  In  Coope 
V.  Eyre,  1  H.  Bl.  37,  A.,  B.,  C,  and  B. 
agreed  to  buy  jointly  all  the  oil  they 
could  get,  as  their  joint  purchase,  but 
A.  alone  was  to  buy,  and  B.,  C,  and  D. 
were  to  share  equally  in  the  oil  he 
bought.  A.  buys  of  E.  F.  on  credit. 
The  oil  falls  in  value,  and  A.  fails.     E. 


F.  sues  B.,  C.,  and  D.  as  his  partners. 
They  were  held  not  to  be  his  partners, 
because  it  appeared  that  A.  was  not  to 
sell  for  the  rest  ;  but  when  he  had 
bought,  B.,  C,  and  D.  were  to  receive 
from  him  each  one  fourth ;  and  there 
was  no  community  in  the  disposition  of 
the  oil.  —  A  firm  can  not  be  charged 
with  a  debt  contracted  by  one  of  the 
partners  before  the  partnership  was 
constituted,  although  the  subject-matter 
which  was  the  consideration  of  the  debt, 
has  been  carried  into  the  partnership  as 
stock.  Brooke  v.  Evans,  5  Watts,  196; 
Ketchum  v.  Durkee,  1  Hoff.  Ch.  R.  538. 

(it)  Felichv  V.  Hamilton,  1  Wash.  C 
C.  R. 491. 

(y)  Anderson  v.  Tompkins,  1  Brock. 
456.  It  was  held  in  this  case  that  the 
right  of  one  partner  to  bind  another  by 
such  assignment  results  from  his  general 
power  to  dispose  of  the  partnership 
property,  and  if  made  bond  fide  is 
valid.  Marshall,  C.  J.,  said,  "  Had  this, 
then  been  a  sale  for  money,  or  on 
credit,  no  person,  I  think,  could  have 
doubted  its  obligation.  I  can  perceive 
no  distinction  in  law,  in  reason,  or  in 
justice,  between   such   a   sale  and  the 

[159] 


155 


THE  LAW  OF   CONTRACTS. 


[book  I. 


the  weight  of  authority  and  of  reason  is  in  favor  of  this  power, 
and  that  such  assignment,  being  entirely  in  good  faith,  would 


transaction  which  lias  taken  place.  A 
merchant  may  rightfully  sell  to  his 
creditor,  as  well  as  for  money.  He  may 
give  goods  in  payment  of  a  debt.  If  lie 
may  thus  pay  a  small  creditor,  lie  may 
thus  pay  a  large  one.  The  quantum  of 
debt,  or  of  goods  sold,  cannot  alter  the 
right.  Neither  docs  it,  as  I  conceive, 
affect  the  power,  that  these  goods  were 
conveyed  to  trustees  to  be  sold  by  them. 
The  mode  of  sale  must,  I  think,  depend 
on  circumstances.  Should  goods  be 
delivered  to  trustees,  for  sale,  without 
necessity,  the  transaction  would  be 
examined  with  scrutinizing  eyes,  and 
might,  under  some  circumstances,  be 
impeached.  But  if  the  necessity  be 
apparent,  if  the  act  be  justified  by  its 
motives,  if  the  mode  of  sale  be  such  as 
the  circumstances  require,  I  cannot  say 
that  the  partner  has  exceeded  his 
power."  The  assignment  was  also  held 
valid  in  Harrison  v.  Sterry,  5  Cranch, 
300,  although  under  seal.  Robinson  r. 
Crowder,  4  McCord,  519.  And  see  to 
the  same  effect  Mills  v.  Barber,  4  Day, 
428  ;  Deckard  v.  Case,  5  Watts,  22 ; 
Tapley  r.  Butterfield,  1  Met.  .515.  In 
Egberts  v.  Wood,  3  Paige,  517,  Chan- 
cellor Walworth  considered  such  assign- 
ments valid  when  not  against  the  known 
■wishes  of  a  copartner.  The  contrary 
was  held  in  Dickinson  r.  Legare,  1 
Desau.  537  (overruled  by  Robinson  v. 
Crowder,  supra);  Dana  v.  Lull,  17  Verm 
390.  Per  Redjield,  J.,  and  Bennett,  J. 
See  Moddewell  v.  Keever,  8  W.  &  S.  63. 
In  Havens  v.  Hussey,  5  Paige,  30,  the 
power  of  one  partner  to  make  such  an 
assignment  against  the  known  wishes  of 
a  copartner,  or  without  his  consent,  was 
held  invalid.  Chancellor  Wahcorih,  re- 
ferring to  Egberts  v.  Wood,  supra,  said, 
"As  it  was  not  necessary  for  the  deci- 
sion of  that  case,  I  did  not  express  any 
opinion  as  to  the  validity  of  an  assign- 
ment of  the  partnership  effects  by  one 
partner,  against  the  known  wishes  of  his 
copartner,  to  a  trustee,  for  the  benefit  of 
the  favorite  creditors  of  the  assignor ;  in 
fraud  of  the  rights  of  his  copartner  to 
participate  in  the  distribution  of  the 
partnership  effects  among  the  creditors, 
or  in  the  decision  of  the  question  as  to 
which  of  the  creditors,  if  any,  should 
have  a  preference  in  payment  out  of  the 
effects  of  an  insolvent  concern.  .  .  . 
One  member  of  the  firm,  without  any 

[160] 


express  authority  from  the  other,  may 
discharge  a  partnership  debt,  either  by 
the  payment  of  money,  or  by  the  trans- 
fer to  the  creditor  of  any  other  of  the 
copartnership  effects  ;  although  there 
may  not  be  sufficient  left  to  pay  an 
equal  amount  to  the  other  creditors  of 
the  firm.  But  it  is  no  part  of  the  ordi- 
nary business  of  a  copartnership  to  ap- 
point a  trustee  of  all  the  partnership 
effects,  for  the  purpose  of  selling  and 
distributing  the  proceeds  among  the 
creditors  in  unequal  proijortions.  And 
no  such  authority  as  that  can  be  im- 
plied. On  the  contrary,  such  an  exer- 
cise of  power  by  one  of  the  firm,  without 
the  consent  of  the  other,  is  in  most  cases 
a  virtual  dissolution  of  the  copartner- 
ship ;  as  it  renders  it  impossible  for  the 
firm  to  continue  its  business.'' —  In  Hitch- 
cock V.  St.  John,  1  Hoff.  Ch.  511,  it  was 
held,  that  one  partner  cannot  on  the  eve 
of  insolvency  assign  all  the  partnership 
property  to  a  trustee,  for  the  purpose  of 
paying  the  debts  of  the  firm  with  prefer- 
ences. In  Kirby  v.  Ingersoll,  1  Doug. 
(Mich.)  477,  the  reasons  for  and  against 
the  validity  of  such  assignments  to  trus- 
tees were  elaborately  considered  by  Felch, 
J.,  delivering  the  opinion  of  the  court,  and 
Whipple  dissenting;  and  it  was  held 
that  the  implied  authority  arising  from 
the  ordinary  contract  of  copartnership 
does  not  authorize  one  of  the  partners, 
Avithout  the  assent  of  his  copartners, 
and  in  the  absence  of  special  circum- 
stances, as  their  absence  in  a  foreign 
countr}-.  to  make  a  general  assignment 
of  the  partnership  effects,  to  a  trustee, 
for  the  benefit  of  creditors,  giving  pre- 
ferences to  some  over  others.  The 
power  of  one  partner  to  make  such  an 
assignment  to  trustees  as  would  termi- 
nate the  partnership  was  left  undecided 
in  Hayes  v.  Heyer,  4  Sandf.  Ch.  485,  and 
Pierpoint  r.  Graham,  4  Wash.  C.  C. 
232.  In  the  latter  case  Judge  Wash- 
ington evidently  inclined  to  the  opinion 
that  it  does  not  exist,  although  he  did 
not  find  it  necessary  to  express  himself 
decidedly  upon  the  question.  See  Coll- 
yer  on  JPart.  §  395 ;  Story  on  Part.  § 
101,  310;  3  Kent.  Comm.  44,  note,  (7th 
cd.)  But  the  assignment  of  real  pro- 
perty to  trustees  will  not  bind  the  part- 
ners who  do  not  join  in  it.  Anderson 
V.  Tompkins,  1  Brock.  463;  CoUyer  on 
Part.  (3d  Am.  ed.)  ^  394. 


CH.  XII.] 


PARTNERSHIP. 


*156 


be  held  valid.  He  may  soil  the  whole  stock  in  *trade  by  a 
single  contract,  (w)  Nor  is  the  sale  avoided  by  the  fact  that 
the  partner  making  the  sale  applies  the  proceeds  to  the  pay- 
ment of  his  private  debt,  (x) 

It  seems  to  be  settled  that  a  partner  may  dissent  from  a 
future  or  incomplete  contract,  and  that  a  third  party  having 
notice  of  such  dissent  could  not  hold  the  dissenting  partner, 
without  evidence  of  his  subsequent  assent  or  ratification,  (i/) 


(w)  Arnold  v.  Brown,  24  Pick.  89 ; 
Tapley  v.  Butterfield,  1  Met.  518;  An- 
derson V.  Tompkins,  1  Brock.  456 ; 
Pierson  v.  Hoolcer,  3  Johns.  70 ;  Living- 
ston V.  Roosevelt,  4  Johns.  277  ;  Mills 
V.  Barber,  4  Day,  430  ;  Pierpoint  r. 
Graham,  4  Wash.  C  C.  234  ;  Kirby  v. 
Ini^ersoll,  1  Barring.  Ch.  (Mich.)  172; 
Halstead  v.  Shepard,  23  Ala.  558.  In 
Whitton  V.  Smith,  1  Freeman,  Ch. 
(Miss.)  238,  Buckner,  C.  J.,  says,  "  One 
of  the  undisputed  canons  of  the  law  of 
partnership  is,  the  right  of  each  partner 
to  sell  the  whole  partnership  property, 
if  the  sale  be  free  from  fraud  on  the  part 
of  the  purchaser,  and  such  a  sale  termi- 
nates the  partnership  relation."  Arnold 
V.  Brown,  24  Pick.  92.  Morton,  J. 
"The  sale  was  made  by  one  of  two 
partners.  And  the  first  objection  is, 
that  one,  in  the  absence  of  the  other, 
had  no  authority  to  make  this  sale.  It 
is  said,  that  although  he  miglit  sell  the 
whole  partnership  stock  by  retail,  yet 
that  it  was  not  according  to  the  ordi- 
nary course  of  business,  and  so  not 
within  the  scope  of  his  authority,  to  sell 
the  whole  at  once  by  a  single  contract. 
We  have  uo  evidence  of  the  terms  of 
association  between  these  partners ;  but 
there  is  no  reason  to  suppose  that  either 
member  of  the  firm  had  any  different 
authority  than  what  was  derived  from 
the  relation  subsisting  between  them. 
Doubtless  the  ordinary  business  of  the 
company  was  to  purchase  goods  by  the 
large  quantitj',  and  to  sell  them  in  small 
quantities.  But  this  cannot  restrain 
the  general  power  to  buy  and  sell.  The 
validity  of  a  purchase  or  a  sale  cannot 
be  made  to  depend  upon  the  amount 
bought  and  sold.  The  authority  will 
expand  or  contract,  according  to  the 
emergencies  which  may  arise  in  the 
course  of  their  proper  business.  One  of 
tlieir  principal  objects  was  to  sell,  and 
it  would  be  absurd  to  say  that  either 

14* 


partner  might  sell  all  the  goods  by  re- 
tail as  fast  as  possible,  but  if  a  favorable 
opportunity  occurred,  to  sell  a  great 
part  or  the  whole  at  once,  he  would 
have  no  power  to  do  it.  That  an  exi- 
gency had  arisen  in  the  aft'airs  of  the 
partnership,  which  rendered  a  sale  ne- 
cessary', and  which  made  it  highly 
expedient  and  beneficial  to  sell  in  this 
mode,  is  very  apparent.  And  we  have 
no  doubt  that  the  one  partner  was 
authorized  to  make  this  sale  in  the  name 
of  the  firm." 

(.r)  Arnold  v.  Brown,  24  Pick.  93. 
Motion,  J.  "  It  was  immaterial  to  the 
purchaser  how  or  to  whom  he  paid  the 
price.  If  a  portion  went  to  pay  a  pri- 
vate debt  of  one  of  the  firm,  it  would 
not  invalidate  the  sale  and  defeat  the 
transfer  of  the  goods.  Whether  it 
would  be  deemed  a  legal  payment  pro 
tanto,  as  against  the  creditors  of  the  firm, 
is  a  question  with  which  we  have  nothing 
to  do.  So  if  the  partnership  stock  had 
been  taken  in  satisfaction  of  a  private 
debt  due  from  one  of  the  partners  to 
the  purchaser,  it  might  have  been 
deemed  fraudulent  as  to  the  creditors  of 
the  company.  But  such  was  not  this 
case." 

(ij)  In  Willis  V.  Dyson,  1  Stark.  164, 
the  dissent  was  by  one  partner,  who  ' 
sent  a  circular  containing  tliese  words: 
"I  am  sorry  that  the  conduct  of  my 
partner  compels  me  to  send  the  annexed 
circular.  I  recommend  it  to  you  to  be 
in  possession  of  my  individual  signature 
before  you  send  any  more  goods;"  and 
it  was  held  to  be  sufficient.  Lord  El- 
lenborongh  held,  "  that  although  no  dis- 
solution had  taken  place  till  a  late 
period,  yet  that  after  notice  by  one 
partner  not  to  supply  any  more  goods 
on  the  partnership  account,  it  would  be 
necessary  for  the  partner  sending  goods 
after  such  notice  to  prove  some  act  of 
adoption  by  the  partner  who  gave  the 

[161] 


157* -158* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


*And  the  mere,  fact  that  the  goods  purchased  by  the  contract 
came  into  the  possession  of  the  firm  is  not  sufficient  evidence 
of  such  assent  or  ratification,  (z) 

Money  lent  to  one  partner  for  his  own  expenses,  incurred 
by  him  in  prosecuting  the  business  of  the  partnership,  has 
been  held  to  be  a  partnership  debt,  (a)  But  a  person  lending 
money  to  one  partner,  that  he  may  contribute  it  to  increase 
the  capital  of  the  concern,  cannot  hold  the  other  partners  lia- 
ble, without  some  evidence  of  their  assent  or  authority,  (b) 
*And  one  attorney,  a  member  of  a  firm,  has  no  general  author- 
ity resulting  from  the  nature  of  their  business  to  borrow  mo- 


notice,  or  that  he  had  derived  some  be- 
nefit from  the  goods."  Feigley  v.  Spone- 
berger,  5  W.  &  S.  564  ;  Vice  v.  Fleming, 
1  Younge  &  Jerv.  227  ;  3  Kent,  Comm. 
45 ;  Lavfield's  case,  1  Salk.  292  ;  Min- 
nit  V.  Whinery,  5  Bro.  P.  C  489 ; 
Eooth  V.  Quinn,  7  Price,  193.  — The 
implied  authority  of  one  partner  to  draw 
bills  and  notes  for  the  partnership  is  re- 
voked by  notice  to  the  person  who  after- 
wards receives  them  that  it  does  not 
exist.  Galway  v.  Matthew,  1  Camp. 
403  ;  S.  C.  10  East,  264  ;  Eooth  v. 
Quinn,  7  Price,  193.  The  refusal  of  a 
pai-tner  to  give  a  joint  note  does  not  of 
itself  amount  to  a  revocation  of  the  im- 
plied authority,  but  the  question  is  to 
be  submitted  as  one  of  fact  for  the  jury. 
Leavitt  v.  Peck,  3  Conn.  124;  Vice  v. 
Fleming,  1  Younge  &  Jerv.  227.  —  Tliis 
dissent  may  not  perhaps  relieve  a  part- 
ner from  liability  where  the  partnership 
consists  of  more  than  two,  unless  the 
majority  dissent.  3  Kent,  Comm.  45 ; 
Story  on  Part.  §  123;  Coll.  on  Part. 
§  389,  note ;  Eooth  v.  Quinn,  7  Price, 
193;  Kirk  v.  Hodgson,  3  Johns.  Ch. 
-400.  And  it  has  been  held  that  each 
partner  may  bind  his  copartners  by  any 
contract  within  the  scope  of  the  partner- 
ship business,  notwitlistanding  they  ob- 
ject to  the  transaction.  Wilkins  v. 
Pearce,  5  Dcnio,  541.  "By  the  act  of 
entering^  into  a  copartnership,  each  of 
its  members  becomes  clothed  with  full 
power  to  make  any  and  every  contract 
•within  the  scope  and  limits  of  the  co- 
partnership business.  All  such  contracts 
will  therefore  be  absolutely  binding  upon 
the  several  members.  This,  however,  is 
incident  to  the  copartnership  relation, 
and  must  exist,  in  defiance  of  expostula- 
tions and  objections,  while  the  relation 

[162] 


endures."  S.  C.  2  Comst  469.— A  firm 
cannot  be  charged  with  a  debt  contract- 
ed by  one  partner,  before  the  partner- 
ship was  constituted,  although  the  sub- 
ject-matter which  was  the  consideration 
of  the  debt  has  been  carried  into  the 
partnership  as  stock.  Nor  can  the  firm 
be  charged  with  rent  which  accrued  upon 
a  lease  to  one  of  the  partners.  Brooke  v. 
Evans,  5  Watts,  196  ;  Ketchum  v.  Dur- 
fee,  1  Hoflt.  Ch.  K.  528  ;  Le  Eoy  v.  John- 
son, 2  Peters.  198. 

(z)  Monroe  v.  Conner,  15  Maine,  178. 
Shepley,  J.  "  It  is  quite  obvious  that 
there  may  be  a  difference  between  the 
goods  coming  to  the  use  of  the  firm,  and 
a  benefit  derived  to  the  dissenting  part- 
ner from  their  delivery  to  the  firm.  The 
bargain  may  have  proved  to  be  a  very 
losing  one,  and  this  may  have  been  fore- 
seen by  the  dissenting  partner,  and  have 
been  the  very  cause  of  the  notice ;  and 
why  should  he  be  held  to  pay,  perhaps 
from  his  private  property,  for  goods,  the 
purchase  and  sale  of  which  may  have 
absorbed  the  whole  partnership  stock, 
when  he  had  provided  against  such  a 
calamity  by  expressing  his  dissent  from 
the  contract  before  it  was  consumma- 
ted?" 

(a)  Rothwell  v.  Humphreys,  1  Esp. 
400.  And  see  Ex  parte 'Bowhoims,  8  Ves. 
540.  —  But  if  one  partner  borrow  money 
and  give  his  own  security  for  it,  it  does 
not  become  a  partnership  debt  by  being 
applied  to  partnership  purposes.  Graeflf 
V.  Hitchman,  5  Watts,  454 ;  Bevan  v. 
Lewis,  1  Sim.  376;  Emly  v.  Lye,  15 
East,  6. 

(6)  Fisher  v.  Tayler,  2  Hare,  218. 
And  see  Greenslade  v.  Dower,  7  B.  & 
C.  635. 


CH.  XII.] 


PARTNERSHIP. 


-158 


ney  on  the  credit  of  the  firm,  (c)  Nor  can  he  bind  his  co- 
partner by  an  indorsement  of  a  writ  in  his  own  name,  (cc) 
A  lender  of  money  to  a  partner  cannot,  in  general,  recover 
of  the  firm,  without  showing  that  the  money  was  applied  to 
the  use  of  the  firm.  But  this  is  not  a  universal  rule.  For  if 
this  be  not  shown,  and  even  if  it  be  proved  that  the  money 
was  not  so  applied,  yet  the  firm  will  be  liable  for  it,  if  it  were 
borrowed  in  their  name  by  a  partner  whom  they  had  appa- 
rently clothed  with  authority  to  borrow  it  for  them,  (d) 
This  question  can  be  decided  in  many  cases  only  by  the 
special  circumstances  attending  the  transaction.  For  if  mo- 
ney has  been  actually  borrowed  by  one  partner  on  the  credit 
of  the  firm,  and  in  the  course  of  the  business  of  the  firm,  the 
other  partners  are  liable,  although  the  money  was  misapplied 
by  him  who  borrowed  it.  (e)  And  if  the  money  be  bor- 
rowed by  one  partner,  not  expressly  on  his  individual  credit, 
and  it  was  in  part  borrowed  for  and  used  by  the  firm,  the 
copartners  are  liable.  (/)     And  where  the  money  of  a  third 


(c)  Breckenridge  v.  Shrieve,  4  Dana, 
378.  See  also  Sims  v.  Brutton,  1  E.  L. 
&  E.  446;  Wilkinson  v.  Candlish,  19 
Law  J.  Rep.  Exch.  166  ;  Harmon  v. 
Johnson,  3  Car.  &  Kir.  277. 

[cc]  Davis  V.  Gowen,  1 7  Maine,  387. 

(c?)  In  Etheridge  v.  Binney,  9  Pick. 
272,  it  was  held,  that  in  case  of  a  limited 
and  dormant  partnership  carried  on  by 
one  of  tlie  partners  in  his  individual 
name,  if  he  borrow  money,  representing 
it  to  be  for  the  use  of  the  partnership,  tlie 
dormant  partners  will  be  liable,  without 
proof  by  the  creditor  that  the  money  went 
to  the  use  of  the  partnership.  But  it  was 
held  otherwise,  if  there  were  no  such  re- 
presentations.—  See  Whitaker  v.  Brown, 
16  Wend.  505,  where  it  was  held  that  a 
note,  given  by  one  partner  in  the  name 
of  the  firm,  is  q/" /<sc-//' presumptive  evi- 
dence of  the  existence  of  a  partnership 
debt,  and  if  the  other  partners  seek  to 
avoid  the  payment,  tlie  burden  of  proof 
lies  upon  them  to  show  that  the  note 
was  given  in  a  matter  not  relating  to 
the  partnership  business,  and  that  also 
with  the  knowledge  of  the  payee.  See 
Thicknesse  v.  Bromilow,  2  Cromp.  & 
Jerv.  425;  Barrett  v.  Swann,  17  Maine, 
180;  Ensminger  v.  Marvin,  5  Blackf. 
210;  Bank  of  United  States  v.  Binney, 
5  Mason,  176. 


(e)  Emei-son  v.  Harmon,  14  Maine, 
271 ;  Church  v.  Sparrow,  5  Wend.  223; 
Onondaga  County  Bank  v.  De  Puy,  17 
Wend.  47;  Waldo  Bank  v.  Lumbert,  16 
Maine,  416;  Winship  v.  Bank  of  Uni- 
ted States,  5  Peters,  529 ;  Steel  r.  Jen- 
nings, Cheevcs,  183.  —  But  see  Loyd  v. 
Ereshfield,  2  Carr.  &  Payne,  325,  where 
Daijley,  J.,  is  reported  to  have  said:  — 
"In  point  of  law,  one  of  several  part- 
ners may  pledge  the  partnership  name 
for  money  bona  Jide  lent,  the  lender  sup- 
posing that  one  partner  has  the  author- 
ity of  the  house  to  borrow,  and  that  he  is 
borrowing  for  the  purpose  of  the  house. 
But  if  there  be  gross  negligence,  and  the 
transaction  be  out  of  the  ordinary  course 
of  business,  the  lenders  cannot  recover 
of  the  other  partners,  if  the  money  be 
misapplied." 

(/')  Church  V.  Sparrow,  5  Wend. 
22.3;  Whitaker  v.  Brown,  16  Wend.  505; 
Miller  v.  Manice,  6  Hill,  114.  — Whe- 
ther the  money  was  so  borrowed  and 
appropriated  is  a  question  for  the  jury. 
Church  V.  Sparrow,  supra.  —  In  Miller 
V.  Manice,  supra,  Walworth,  Ch.,  is  re- 
ported to  have  said:  —  "Where  a  third 
person  lends  money  to  one  of  the  co- 
partners upon  the  check  or  notes  of  the 
firm,  he  has  a  right  to  presume  it  is  for 
the  use  of  the  firm,  unless  there  is  some- 

[163] 


159 


THE   LAW   OF   CONTRACTS. 


[book  I. 


person  is  in  the  hands  of  a  copartner  as  trustee,  and  he  ap- 
plies it  to  the  use  of  the  firm,  with  the  knowledge  and  con- 
sent of  the  copartners,  they  are  certainly  bound,  (g-)  And 
it  has  been  decided,  upon  strong  reasons,  that  they  are  so 
held  without  their  knowledge  and  consent,  (h)  Still,  if  a 
partner  borrows  money  on  his  individual  credit,  and  subse- 
quently applies  it  to  the  benefit  of  the  firm,  this  does  not 
make  the  firm  liable  to  the  original  lender,  (i) 


thing  to  create  a  suspicion  that  the  mo- 
ney is  not  borrowed  for  the  firm,  and 
that  the  borrower  is  committing  a  fraud 
upon  his  copartners.  And  where  money 
is  thus  borrowed  upon  the  note  or  check 
of  the  firm,  the  members  of  the  firm,  or 
those  of  them  to  whom  the  credit  was 
given  by  the  lender,  are  bound  to  show 
not  only  that  the  money  was  not  ap- 
plied to  their  use,  but  also  that  the 
lender  had  reason  to  believe  it  was  not 
intended  to  be  so  applied  at  the  time  it 
was  lent.  Bond  v.  Gibson,  1  Camp. 
185;  Whitakcr  v.  Brown,  16  Wend. 
505."  See  further,  Jaqucs  v.  Marquand, 
6  Cowen,  497. 

(ff)  Hutchinson  v.  Smith,  7  Paige, 
26  ;  Jaques  v.  Marquand,  6  Cowen, 
497. 

(A)  Richardson  v.  Trench,  4  Met.  577. 
In  this  case  it  was  determined  that 
where  an  administrator,  who  is  a  mem- 
ber of  a  partnership,  applies  to  the 
partnership  concerns  money  belonging 
to  his  intestate's  estate,  and  afterwards 
gives  the  note  of  the  firm  to  a  creditor 
of  the  intestate,  to  whom  such  money 
was  due  in  discharge  of  such  creditor's 
claim  on  the  estate,  the  firm  is  bound 
to  pay  the  note,  although  the  money 
was  not  in  the  hands  of  the  firm  when 
the  note  was  given.  And  Hubbard,  J.,  in 
giving  the  opinion  of  the  Court,  said: — 
"  The  defence  relied  upon  in  this  case 
is,  that  the  money  of  the  plaintiff"  never 
came  to  the  use  of  the  firm  of  P.  Blod- 
gctt  &  Co.,  and  consequently  that  the 
note  declai'ed  on  was  without  consider- 
ation ;  that  if  the  money  in  the  hands  of 
P.  Blodgett,  as  one  of  the  administra- 
tors of  George  Blodgett,  and  belonging 
to  that  estate,  was  used  by  the  firm  of 
P.  Blodgett  &  Co.,  the  firm  were  not  the 
debtors  to  the  several  creditors  of  the 
estate,  between  whom  and  them  there 
was  no  privity,  but  to  the  administrators 
of  the  estate ;"  and  that  the  remedy  of  the 

[164] 


creditors,  of  whom  the  plaintiff  was  one, 
was  on  the  bond  of  the  administrators. 
Without  controverting  this  proposition, 
we  think  the  plaintiff's  case  can  be  dis- 
tinguished from  it.  The  firm  of  P. 
Blodgett  &  Co.  have  the  use  of  the  mo- 
ney of  the  estate  which  they  have  bor- 
rowed from  the  administrators.  If  then 
the  plaintiff,  knowing  this,  is  willing  to 
discharge  her  claim  against  the  estate, 
and  take,  in  lieu  thereof,  the  note  of  the 
firm,  it  seems  to  us  that  the  transactiou 
is  a  valid  one,  and  that  the  note  is  given 
on  a  good  consideration.  Supposing 
the  transaction  to  appear  in  the  books 
of  the  firm,  the  administrators  on  the 
estate  of  George  Blodgett  will  be  charg- 
ed with  the  amount  of  the  note  given 
to  the  plaintiff";  and  the  note  will  be 
entered  in  the  account  of  notes  paya- 
ble, and  the  receipt  of  the  plaintiff",  and 
her  order  for  her  dividend  upon  the  es- 
tate, will  be  a  good  voucher  for  the  de- 
fendants to  sustain  their  charge  for  so 
much  money  returned  to  the  adminis- 
trators. And  we  ai-e  further  of  opinion 
that  it  was  not  necessary,  as  was  ruled  by 
the  Court  of  Common  Pleas,  that  the 
money  should  have  been  substantially 
in  hand,  at  the  time  of  giving  the  note, 
to  enable  the  plaintiff'  to  recover  upon  it 
against  the  firm.  It  was  sufficient  for 
that  purpose  if  the  money,  to  which  the 
plaintiff  had  an  equitable  claim,  had  in 
fact  been  used  by  the  firm,  to  authorize 
the  giving  of  the  note  so  as  to  bind  them ; 
it  being  the  substitution  of  one  creditor 
of  the  firm  for  another,  for  a  good  con- 
sideration, by  consent  of  the  difi'erent 
parties  concerned.  For  whether  the  de- 
fendant, French,  was  ignorant  or  not  of 
the  giving  of  the  note,  at  the  time,  the 
act  of  his  copartner  in  this  respect  is 
equally  binding  upon  him,  the  firm  hav- 
ing had  the  money. 

(i)  Green  v.  Tanner,  8  Met.  411  ;  Be- 
van  v.  Lewis,   1    Sim.  376  ;  Graeff  v. 


en.  XII.] 


PARTNERSHIP. 


160 


It  was  decided  many  years  ago,  in  one  case,  that  a  pur- 
chase by  one  partner  bound  the  others ;  and  in  another  case, 
that  a  sale  by  one  partner  bound  the  others  ;  (j)  and  these 
rules  are  the  basis  of  a  partnership  liability  now.  And  the 
seller  or  the  purchaser  will  not  be  affected  by  the  fraudulent 
intention  of  the  partner  in  the  transaction,  unless  there  has 
been  collusion,  or  want  of  good  faith,  or  gross  negligence,  on 
his  part,  {k)  But  the  power  of  one  partner  to  dispose  of 
partnership  property  is  confined  strictly  to  personal  effects.  (/) 
A  copartner  may  bind  the  firm  in  matters  out  of  their  usual 
course  of  business,  if  they  arose  out  of  and  were  connected 
with  their  usual  business,  (m) 

Partners  may  be  made  liable  for  the  torts  of  a  copartner  if 
if  done  apparently  in  due  course  of  the  business  of  the  firm, 
and  the  existence  of  the  copartnership  audits  business  is  that 
which  gives  the  opportunity  for  the  wrong  and  injury  inflicted 


Hitchman,  5  Watts,  454 ;  Logan  v. 
Bond,  13  Geo.  192;  Wiggins  t.\  Ham- 
mond, 1  Missouri,  121.  —  If  the  note 
be  signed  A.  B.,  for  A.  B.  &  Co.,  the 
firm  will  be  liable.  Staats  v.  Howlett, 
4  Denio,  559.  —  If  a  partner  borrow 
money  on  his  own  note  for  the  use  of 
the  firm,  he  may  afterwards  substitute 
the  note  of  the  firm  for  his  own,  and  it 
■will  be  no  fraud,  and  the  iirm  will  be 
bound.  Union  Bank  v.  Eaton,  5  Humph. 
499. 

(j)  Lambert's  case,  Godbolt,  R.  244  ; 
Hyat  V.  Hare,  Comb.  38.3.  And  see 
Winship  v.  Bank  of  United  States,  5 
Peters,  561  ;  Walden  v.  Sherburne,  15 
Johns.  422  ;  Mills  v.  Barber,  4  Day, 
430  ;  Dougal  v.  Cowles,  5  Day,  515. 

(k)  Bond  V.  Gib.son,  1  Camp.  185. 
Assumpsit  for  goods  sold  and  delivered. 
It  appeared  that  while  the  defendants 
were  carrying  on  the  trade  of  harness- 
makers  together,  Jephson  bought  of 
the  plaintiff  a  great  number  of  bits  to  be 
made  up  into  bridles,  which  ho  carried 
away  himself ;  but  that  instead  of  bring- 
ing them  to  the  shop  of  himself  and  his 
copartner  he  immediately  pawned  them 
to  raise  money  for  his  own  use.  Gazelee, 
for  the  defendant  Gibson,  contended  that 
this  could  not  be  considered  a  partnership 
debt,  as  the  goods  had  not  been  bought 
on  the  partnership  account,  and  the  cre- 
dit appeared  to  have  been  given  to  Je]ih- 
son  only.     He  allowed  the  case  would 


have  been  different,  had  the  goods  once 
been  mixed  with  the  partnership  stock, 
or  if  proof  had  been  given  of  former 
dealings  upon  credit  between  the  plain- 
tiff and  the  defendants.  Jjonl  Ellenbo- 
rough :  "  Unless  the  seller  is  guilty  of 
collusion,  a  sale  to  one  partner  is  a  sale 
to  the  partnership,  with  whatever  view 
the  goods  may  be  bought,  and  to  what- 
ever purposes  they  may  be  applied.  I 
will  take  it  that  Jephson  here  meant  to 
cheat  his  copartner ;  still  the  seller  is 
not  on  that  account  to  suffer.  He  is  in- 
nocent ;  and  he  had  a  right  to  suppose 
that  the  individual  acted  for  the  part- 
nership." Verdict  for  the  plaintiff. — 
See  McCullongh  v.  Sommcrville,  8 
Leigh,  415  ;  Arnold  v.  Brown,  24  Pick. 
89;  Tapley  v.  Butterfield,  1  Met.  518; 
Anderson  v.  Tompkins,  1  Brock.  456  ; 
Pierpoint  v.  Graham,  4  Wash.  C.  C. 
234  ;  Kirliy  ?;.  Ingersoll,  1  Harr.  Ch.  R. 
172;  Whitton  I'.  Smith,  Freem.  Ch.  E. 
231. 

(/)  Anderson  i\  Tompkins,  1  Brock. 
456.  Shcnv,  C.  J  ,  in  Tapley  v.  Butter- 
field,  1  Met.  519;  Coles  v.  Coles,_  15 
Johns.  159. — Nor  can  one  partner,  with- 
out special  authority,  bind  the  firm  by 
a  contract  for  the  sale  of  real  estate 
employed  in  the  business  of  the  firm. 
Lawrence  v.  Taylor,  5  Hill,  107. 

(m)  Sandilands  v.  Marsh,  2  B.&  Aid. 
673. 

[1G5] 


161 


THE   LAW   OF   CONTRACTS. 


[book  I. 


upon  the  innocent  party,  (n)  It  has  been  held  that  one  part- 
ner might  bind  the  firm  by  a  guaranty  or  letter  of  credit  given 
in  their  name ;  (o)  but  it  seems  to  be  now  settled  that  there 
must  be  a  special  authority  for  that  purpose ;  but  this  may 
be  implied  from  the  common  course  of  business  or  previous 
transactions  between  the  parties,  or  from  subsequent  adop- 


(n)  Willet  V.  Chambers,  Cowper,  814. 
So  where  one  partner  purchases  such 
articles  as  might  be  of  use  in  the  part- 
nership business,  and  instantly  converts 
them  to  his  own  separate  use,  the  part- 
nership is  liable.  Bond  v.  Gibson,  1 
Camp.  185.  A.  employed  B.  and  C, 
who  were  partners  as  wine  and  spirit 
merchants,  to  purchase  wine  and  sell 
the  same  on  commission.  C,  the  ma- 
naging partner,  represented  that  he  had 
made  the  purchases,  and  that  he  had  sold 
apart  of  the  wines  so  purchased  at  a  pro- 
fit ;  the  proceeds  of  such  supposed  sales 
he  paid  to  A.,  and  rendered  accounts,  in 
which  he  stated  the  purchases  to  have 
been  made  at  a  certain  rate  per  pipe. 
In  fact,  C.  had  neither  bought  nor  sold 
any  wine.  The  transactions  were  wholly 
fictitious,  but  B.  was  wholly  ignorant  of 
that.  Upon  the  whole  account  a  larger 
Bum  had  been  repaid  to  A.,  as  the  pro- 
ceeds of  that  part  of  the  wine  alleged  to 
be  resold,  than  he  had  advanced  ;  but 
the  other  part  of  the  wine,  which  C.  re- 
presented as  having  been  purchased, 
was  unaccounted  for.  Held,  that  B.  was 
liable  for  the  false  representations  of  his 
partner;  and  that  A.  was  entitled  to 
retain  the  money  that  had  been  paid  to 
him  upon  these  fictitious  transactions, 
as  if  they  were  real.  Ilapp  v.  Latham, 
2  B.  &  Aid.  795.  See  Stone  v.  Marsh, 
6  B.  &  C.  551,  (Fauntleroy's  case); 
Hume  V.  Bolland.  Rvan  &  Moody,  371 
Kilhy  V.  Wilson,  Ryan  &  Moody,  178  ; 
Edmonson  v.  Uavis,  4  Esp.  14  ;  More- 
ton  V.  Ilardern,  4  B.  &.  C.  223  ;  Bab- 
cock  V.  Stone,  3  McLean,  172.— -The 
conversion  by  one  partner  of  property 
which  came  into  the  possession  of  the 
firm  on  partnership  account,  is  the  con- 
version of  all.  Nisbet  v.  Patton,  4 
Eawle,  120.  The  partnership  is  liable 
to  the  innocent  indorsee  of  a  promissory 
note  signed  by  one  of  the  members  in 
the  name  of  the  firm,  without  the  know- 
ledge or  consent  of  his  partner;  although 
the  note  was  given  for  a  debt  uncon- 
nected with  the  business  of  the  partner- 
ship.     Boardman  v.    Gore,   15   Mass. 

[166] 


331.  So  the  partnership  is  liable  for 
the  fraudulent  representations  of  a  part- 
ner relative  to  matters  in  the  course  of 
its  business,  although  without  the  know- 
ledge of  his  copartners.  Doremus  v. 
McCormick,  7  Gill,  49  ;  Beach  v.  State 
Bank,  2  Cart.  (Ind.)  489;  Hawkins  v. 
Appleby,  2  Sand.  S.  C.  R.  421.  Sand- 
ford,  J.  "It  has  long  been  established 
that  a  partner  is  liable  in  assumpsit 
for  the  consequences  of  frauds  prac- 
tised by  his  copartner  in  the  transac- 
tion of  the  business,  of  which  he  was 
entirely  ignorant,  and  although  he  de- 
rived no  benefit  from  the  fraud.  This 
is  upon  the  ground  that,  by  forming  the 
connection,  partners  publish  to  the  world 
their  confidence  in  each  other's  integrity 
and  good  faith,  and  impliedly  agree  to 
be  responsible  for  what  they  shall  re- 
spectively do  within  the  scope  of  their 
partnership  business ;  and  if,  by  the 
wrongful  act  of  one,  a  loss  must  fall 
upon  a  stranger,  or  upon  the  other  part- 
ner, who  is  equally  innocent,  the  latter 
having  been  the  cause  or  occasion  of  the 
confidence  reposed  in  his  delinquent  as- 
sociate, must  suffer  the  loss."  It  is  held 
that  the  implied  authority  oF  a  partner 
does  not  extend  to  illegal  contracts,  as 
the  borrowing  of  money  at  usurious  in- 
terest, and  will  not  bind  liis  copartners 
without  their  knowledge  or  consent. 
Hutchins  v.  Turner,  8  Humph.  415. 
The  court  in  this  case  said  ;  — '"  The 
liability  of  a  partner,  arising  out  of  this 
implied  assent,  and  undertaking  to  be 
responsible  for  the  acts  of  his  copartner 
on  behalf  of  the  firm,  in  the  ordinary 
business  and  transactions  thereof,  can- 
not be  held  to  extend  to  illegal  con- 
tract.'J.  This  would  be  absurd.  An 
agency  or  authority  to  a  partner  to  vio- 
late the  provisions  of  a  public  statute 
cannot  be  implied ;  nor  can  it  be  im- 
plied that  such  illegal  act  is  within  the 
scope  of  the  partnership,  which  could 
only  exist  for  lawful  purposes." 

(o)  Hope  V.    Cust,   cited  in  1   East, 
48  ;  Ex  parte  Gardom,  15  Vesey,  286. 


CH.  XII.] 


PARTNEKSHIP. 


162 


tion  by  the  firm,  (p)  And  if  the  word  "  surety  "  be  added 
to  the  signature  of  the  firm,  this  casts  upon  the  holder  the 
burden  of  proving  the  assent  of  the  firm,  (q)  And  if  the  sig- 
nature or  indorsement  be  in  the  usual  form,  but  the  party 
receiving  it  knows  that  it  is  given  by  way  of  suretyship,  he 
must  prove  by  direct  evidence  or  equivalent  circumstances 
the  assent  of  the  partners,  (r) 

A  release  by  one  partner  is  a  release  by  all,  both  in  law  and 
in  equity,  (s)  And  a  release  to  one  partner  is  a  release  to 
all.  (t)  But  any  fraud  or  collusion  destroys  the  effect  of  such 
release.  And  the  release  to  discharge  absolutely  all  the 
copartners,  must  be  a  technical  release  under  seal,  (w)     And 


(p)  Crawford  v.  Stirling:,  4  Esp.  N. 
P.  207 ;  Sutton  v.  Irwine,  12  S.  &  R.  13  ; 
Ex  parte  Nolte,  2  G.  &  Jameson,  295  ; 
Haniill  v.  Purvis,  2  Pcnn.  Rep.  177  ; 
Cremcr  v.  Higginson,  1  Mason,  323  ; 
Poote  V.  Sabin,  19  Johns.  154;  La- 
verty  v.  Burr,  1  Wend.  531  ;  N.  Y.  Pire 
Insurance  Co.  v.  Bennett,  5  Conn.  574; 
Andrews  v.  Planters  Bank,  7  Sm.  & 
Mar.  192  ;  Langan  v.  Hewett,  13  Sm.  & 
Mar.  122. 

(q)  Boyd  V.  Plumb,  7  Wend.  309 ; 
Rollins  V.  Stevens,  31  Maine,  454. 

(r)  Darling  v.  March,  22  ]\Iainc, 
188. 

(s)  Pierson  v.  Hooker,  3  Johns.  68 ; 
Bruen  v.  Marquand,  17  Johns.  58  ;  Sal- 
mon V.  Davis,  4  Binney,  375  ;  Morse  v. 
Bellows,  7  New  Hamp.  567  ;  Halsey  v. 
Whitney,  4  Mason,  206  ;  Smith  v.  Stone, 
4  Gill  &  Johns.  310;  McBride  v.  Ha- 
gan,  1  Wend.  326.  The  rule  of  law  and 
equity  is  the  same,  and  only  collusion 
forfraudulent  purposes  between  the  part- 
ners and  a  debtor  destroys  the  effect  of 
such  release.  Barker  v.  Richardson, 
1  You.  &  Jer.  362 ;  Cram  v.  Cadwell, 
.5  Cowen,  489.  —  And  the  fraud  must 
be  clearly  established.  Arton  v.  Booth, 
4  Moore,  192;  Purnival  i?.  Weston,  7 
Moore,  356.  And  see  Legh  v.  Legh,  1 
B.  &  P.  447  ;  Jones  v.  Herbert,  7  Taunt. 
421  ;  Mountstcphen  v.  Brooke,  1  Chitty, 
391.  —  Where  one  partner  signed  a  ge- 
neral release  to  a  debtor  of  the  firm,  and 
it  did  not  appear  whether  it  was  intend- 
ed to  apply  to  separate  or  to  partnership 
demands,  or  whether  the  subscribing 
partner  had  on  his  separate  account  any 
demand  against  the  debtor,  the  release 
was  held  a  discharge  from  debts  due  the 


partnership.  The  release  was  a  part  of 
an  indenture  of  assignment,  in  trust  for 
creditors.  Emerson  v.  Knower,  8  Pick. 
63.  —  Where  such  release  is  for  all  de- 
mands, parol  proof  is  not  admissible 
that  a  particular  debt  was  not  intended 
to  be  released.  Pierson  v.  Hooker,  3 
Johns.  68. 

(t)  Hammon  v.  Roll,  March,  202  ; 
Bower  v.  Swadlin,  1  Atk.  294 ;  Collins 
V.  Prosser,  1  B.  &  C.  682  ;  American 
Bank  v.  Doolittle,  14  Pick.  126;  Good- 
now  V.  Smith,  18  Pick.  416  ;  Clagett  v. 
Salmon,  5  Gill  &  Johns.  314;  Burson  v. 
Kincaid,  3  Penn.  57.  —  So  a  discharge 
of  one  surety  of  his  ivhole  liability  is  a 
discharge  to  the  others.  Nicholson  v. 
Revill,  4  Ad.  &  El.  675  ;  Mayhew  v. 
Crickett,  2  Swanst.  192. — But  a  release 
to  one  partner  may,  by  means  of  recitals 
and  provisos,  be  limited  in  its  operations 
to  the  partner  to  whom  it  is  given.  Sol- 
ly V.  Forbes,  4  Moore,  448,  2  Brod.  & 
Bing.  38.  See  Wiggin  v.  Tudor,  23 
Pick.  444. 

(u)  Shaw  V.  Pratt,  22  Pick.  305  ; 
Walker  v.  McCulloch,  4  Greenl.  421  ; 
Harrison  v.  Close,  2  Johns.  449  ;  Cats- 
kill  Bank  v.  Messenger,  9  Cowen,  37  ; 
Lunt  V.  Stevens,  24  Maine,  534  ;  Shot- 
well  V.  Miller,  Coxe,  81.  —  It  has  been 
held  that  a  composition  deed,  given  by 
the  joint  creditors  of  a  partnership  upon 
its  dissolution  to  that  partner  who  winds 
up  the  affairs  of  the  firm,  is  in  the  na- 
ture of  a  release,  and  will  di-^charge  the 
other  partner  from  his  liability.  Ex  parte 
Slater,  6  Vesey,  146. — But  a  covenant 
not  to  sue  one  of  several  partners  will 
not  have  the  same  effect.  Coll.  on  Part. 
\  608,  and  cases  cited. 

[167] 


1G3 


THE   LAW   OF   CONTRACTS. 


[book  I. 


a  discharge  of  one  of  several  joint  debtors  by  operation  of 
law,  without  the  consent  or  cooperation  of  the  creditor,  takes 
from  him  no  remedy  against  the  other  debtor.  (?;) 

The  signature  or  acknowledment  of  one  partner,  in  matters 
relating  to  the  partnership,  in  general  binds  the  firm ;  (lo)  as 
notice  in  legal  proceedings,  or  abandonment  to  insurers  by 
one  who  has  effected  insurance  for  himself  and  others,  (x) 
And  if  one  of  several  joint  lessors,  partners  in  trade,  sign  a 
notice  to  quit,  this  will  be  valid  for  all ;  {i/)  but  not  if  they 
are  not  partners  in  trade,  (^z)  And  in  general  a  notice  to  one 
partner  is  binding  upon  all.  (a)  Where  a  bill  accepted  by  a 
firm  is  dishonored  by  one  partner,  notice  of  the  dishonor  need 
not  be  given  to  the  other  partners;  (b)  and  where  a  bill  or 
note  is  indorsed  by  a  firm,  which  is  dissolved  before  the  note 
is  due,  notice  to  one  of  the  partners  by  a  holder  not  having 
knowledge  of  the  dissolution,  is  sufficient,  (c)     And  where  the 


(v)  Ward  v.  Johnson,  13  Mass.  152; 
Robertson  v.  Smith,  18  Johns.  459; 
Tooker  i-.  Bennett,  3  Caines,  4  ;  Town- 
send  V.  Riddle,  2  N.  H.  449. 

(iv)  Sec  Corps  v.  Robinson,  2  Wash. 
C.  C.  388  ;  Bound  v.  Lathrop,  4  Conn. 
336;  risk  v.  Copelaud,  Overt.  383.— 
During  the  partnership  one  may  enter 
an  appearance  in  an  action  to  bind  the 
whole.  Bennett  v.  Stickney,  17  Verni. 
531.  See  contra,  Haslet  v.  Street,  2 
McCord,  311:  Loomis  v.  Pierson, 
Harper,  470.  But  after  dissolution  one 
cannot  acknowledge  service  for  the  firm. 
Demott  V.  Swaim,  5  Stew.  &  Porter, 
293.  And  service  of  process  upon  one 
partner,  after  dissolution,  will  not  au- 
thorize a  judgment  against  the  firm. 
Duncan  v.  Tombeckbee  Bank,  4  Porter, 
181. 

(x)  Hunt  V.  Royal  Ex.  Assurance  Co. 
5  Maule  &  Sel.  47.  So  if  one  partner, 
for  himself  and  partner,  sign  a  note  for 
the  weekly  payment  under  the  Lord's 
act,  such  note  will  bind  the  firm.  Meux 
V.  Humphrey,  8  Term,  25 ;  Burton  v. 
Issit,  5  Barn.  &  Aid.  267. 

(y)  Doe  V.  Hulme,  2  Slann.  &  Ryl. 
483. 

(z)  Goodtitle  V.  "Woodward,  3  B.  & 
Aid.  689.  But  one  joint  tenant  may 
appoint  a  bailiff  to  distrain  for  rent  due 
all  the  joint  tenants.  Robinson  v.  Hof- 
man,  4  Bing.  562.  And  one  partner 
may  authorize  a  clerk  to  draw  or  accept 

[168] 


notes  or  bills,  in  the  name  of  the  com- 
pany. Tillier  v.  Whitehead,  1  Dall. 
269. 

(a)  Alderson  V.  Pope,  1  Camp.  404; 
Ex  parte  Waitman,  1  Mont.  &  Ayr. 
364;  Figgins  v.  Ward,  2  C.  &  M.  424; 
Carter  v.  Southall,  3  Mees.  &  Wels. 
128.  —  Notice  to  one  of  several  partners 
of  a  prior  unrecorded  deed  is  notice  to 
all  the  partners,  and  will  avoid  a  deed 
subsequently  made  of  the  same  land  to 
all  the  partners.  Barney  v.  Currier,  1 
Chipman,  315;  Gilby  v.  Singleton,  3 
Litt.  250.  So,  notice  of  want  of  consid- 
eration for  a  promissory  note  to  one 
partner  affects  the  rest.  Quinn  v.  Fuller, 
7  Cush.  224. — So,  in  equity,  service  of 
a  subpoena  upon  one  partner  may,  upon 
notice,  be  made  good  service  upon  his 
copartner  abroad.  Carrington  i\  Can- 
tillon,  Bunb.  107 ;  Coles  v.  Gurney,  1 
Madd.  187.  And  see  Lansing  v.  Mc- 
Killup,  7  Cowen,  416. 

(b)  Porthouse  v.  Parker,  1  Camp.  82. 
See  Dabncy  v.  Stidger,  4  Smedcs  & 
Marsh.  749.  But  it  is  otherwise  in  case 
of  mere  joint  indorsers,  who  are  not  part- 
ners ;  notice  in  such  case  must  be  given 
to  both.  Shepard  v.  Hawley,  1  Conn. 
368.  Even,  it  seems,  to  hold  either. 
Bank,  &c.,  v.  Root,  4  Cowen,  126. 

(c)  Coster  v.  Thomason,  19  Ala.  717 ; 
Nott  i\  Douming,  6  Louis.  R.  684.  And 
in  such  case  it  has  been  said,  that  one 
partner  may,  after  dissolution,  waive  de- 


CH,    XII.] 


PARTNERSHIP. 


*164-*165 


*drawer  of  a  bill  is  a  partner  of  the  house  on  whom  it  is  drawn, 
he  is  chargeable  without  notice  to  him  of  the  dishonor  of  the 
bill,  (d) 

In  some  cases  very  slight  circumstances  appear  to  be  suffi- 
cient to  affect  a  party  with  the  liabilities  of  partnership,  (e) 
*But  the  mere  fact  of  persons  giving  a  joint  order  for  goods 
will  not  make  them  liable  as  partners,  if  it  appear  otherwise 
that  the  seller  trusted  to  them  severally.  (/)  Nor  is  a  person 
made  a  partner  by  a  stipulation  that  a  firm  will  be  govern- 
ed by  his  advice,  (g) 


mand  and  notice  for  the  other  partners 
as  well  as  for  himself.  Darling  v. 
March.  22  Maine,  184.  But  this  may 
be  doubted. 

(d)  Gowan  v.  Jackson,  20  Johns.  176. 
Notice  of  the  dishonor  of  a  note  given 
to  the  surviving  partner  of  a  firm  fixes 
the  liabihty  of  the  partnership,  and  binds 
the  representatives  of  the  deceased  part- 
ner. Dabney  v.  Stidger,  4  Smedes  & 
Marsh.  749  ;  Cocke  v.  Bank  of  Tennes- 
see, 6  Humph.  51. 

(e)  Parker  v.  Barker,  1  Brod.  &  Bing. 
9;  3  Moore,  226.  —  Persons  are  to  be 
treated  as  partners  if  they  so  conduct 
and  hold  themselves  out  to  others,  whe- 
ther their  contract  would  make  them  so 
or  not.  Stearns  v.  Haven,  14  Verm.  540. 
See  notes/,  g,  and  k,  post. 

(f)  Gibson  v.  Lupton,  9  Bing.  297. 
In  this  case  the  two  defendants,  who 
were  not  general  partners,  gave  a  joint 
order  to  the  plaintiff's  agent  for  the  pur- 
chase of  some  wheat.  The  order  con- 
tained these  words,  "  payment  for  the 
same  to  be  drawn  upon  each  of  us  in  the 
usual  manner."  In  reply  to  this  order 
the  plaintiffs  wrote  to  the  defendants  :  — 
"  We  have  made  a  purchase  for  your 
joint  account."  At  the  same  time  they 
drew  a  bill  upon  each  defendant  for  one 
third  of  the  price,  each  bill  being  for  one 
moiety  of  the  third.  They  afterwards, 
on  the  wheat  being  shipped,  drew  like 
bills  for  the  remainder  of  the  price,  hav- 
ing pi-eviously  written,  "  We  hold  you 
both  harmless  for  the  advance  up  to  the 
period  of  lading  and  invoice."  The  bill 
of  lading,  on  coming  into  the  possession 
of  the  defendants,  was  indorsed  by  each 
of  them.  Under  these  circumstances 
the  Court  of  Common  Pleas  held  that 
the  defendants  were  only  severally  liable 
on  tlie  contract,  each  being  responsible 

VOL.   I.  15 


for  the  purchase  of  a  moiety  only  of  the 
cargo.  See  also  Hopkins  v.  Smith,  11 
Johns.  161  :  Livingston  v.  Eoosevelt,  4 
Johns.  266  ;  Melver  v.  Humble,  16  East, 
169. — So  where  in  an  action  of  assump- 
sit C  was  charged  as  a  partner  with  A., 
on  the  authority  of  B.,  who  informed 
the  plaintiff  before  he  furnished  the 
goods  they  were  in  partnership,  and,  at 
the  trial,  B.'s  clerk  proved  that  B.  had 
been  in  the  habit  of  discounting  bills 
for  A.  and  that  in  discounting  a  bill  at 
one  time  for  A.,  he  had  introduced  C. 
to  him  as  his  partner,  but  that  the  only 
connection  in  trade  between  B.  and  the 
defendants  was  in  discounting  bills ; 
Lord  Kemjon  said  that  this  evidence  was 
not  sufficient  to  charge  C.  as  A.'s  part- 
ner; that  the  introduction  of  C.  to  B. 
should  be  taken  secundum  suhjectam  ma- 
tei-iam,  that  is,  as  applying  to  a  transac- 
tion in  which  A.  was  concerned  with  B., 
the  discounting  of  bills,  to  which  trans- 
action only  it  should  be  confined.  De 
Berkom  v.  Smith,  1  Esp.  29  ;  see  also 
Livingston  v.  Roosevelt,  4  Johns.  266. 
((/)  Barklie  v.  Scott,  1  Huds.  &  Bro. ' 
83.  Because  it  does  not  hold  him  out 
to  the  woi'ld  as  a  partner,  nor  give  him 
any  share  in  the  profits,  nor  empower 
him  to  dissolve,  alter,  or  affect  the  part- 
nership.— So  the  facts  that  several  per- 
sons associated  together  to  run  a  line  of 
stage-coaches,  that  they  had  a  general 
meeting,  and  that  debts  were  contracted 
on  account  of  the  company,  do  not 
prove  a  partnership  as  between  them- 
selves. Chandler  v.  Brainard,  14  Pick. 
285 ;  Clark  v.  Eeed,  1 1  Pick.  446.  — And 
the  fact  that  two  persons  sign  a  note 
jointly  was  field  not  evidence  of  a  part- 
nership between  them.  Hopkins  v. 
Smith,  11  Johns.  161.  But  see  Car- 
wick  V.  Vickery,  Douglas,  653;  DeBer- 

[169] 


166* 


THE   L^VW   OF   CON'TIIACTS. 


BOOK   I. 


No  particular  mode  of  holding  oneself  out  as  a  partner  is 
necessary  to  make  one  liable  as  such  ;  but  it  must  be  a  volun- 
tary act;  for  otherwise  a  party  might  be  charged  with  a  ruinous 
responsibility  without  his  knowledge,  intention,  or  assent,  and 
without  fault  on  his  part,  and  through  the  fraud  or  wrongful 
*acts  of  others,  (h)  Where  a  person  is  received  as  a  new 
member  into  an  old  firm,  and  the  new  firm  recognizes,  by 
payment  of  interest,  a  debt  of  the  old  firm,  this  is  in  general 
evidence  of  an  adoption  of  the  debt  by  the  new  firm,  including 
the  new  partner,  which  will  make  him  liable ;  (i)  but  it  has 


kom  V.  Smith,  1  Esp.  29;  3  Kent,  (5th 
Ed.)  30,  aud  note.  See  farther  what 
facts  will  constitute  a  partnership.  Smitli 
V.  Edwards,  2  Harr.  &  Gill,  411.— 
Where  the  terms  of  the  agreement  and 
the  facts  are  admitted,  it  is  always  a 
question  of  law  whether  there  was  a 
partnership  or  not.  See  Everitt  r.  Chap- 
man, 6  Conn.  347  ;  Terrill  v.  Richards.  1 
N.  &  McC.  20 ;  Drake  i\  Elwyn,  1  Caines, 
184;  Bcecham  v.  Dodd,  3  Harr.  485. 

(h)  Such  circumstances  as,  according 
to  the  custom  of  merchants,  usually  indi- 
cate a  partnership,  may  be  given  in  evi- 
dence against  one  whom  it  is  sought  to 
charge  as  a  partner ;  such  as  the  use  of 
his  name  in  printed  invoices,  bills  of 
parcels,  and  advertisements,  or  on  the 
printed  signs  attached  to  the  place  of 
business ;  and  these  may  afford  strong 
presumptive  evidence  of  his  acquies- 
cence in  the  name  and  character  of  part- 
ner. In  general,  if  he  so  acts  as  to  justi- 
fy others  in  believing  him  a  partner,  he 
■will  be  liable  as  such.  Spencer  v.  Bil- 
ling, 3  Camp.  310;  Parker  v.  Barker.  1 
Brod.  &  Bing.  9,  3  Moore,  226.  Never- 
theless, this  evidence  may  be  rebutted 
by  showing  either  that  he  was  entirely 
ignorant  of  these  transactions,  or  that 
he  took  the  proper  means  of  disowning 
them  and  denying  his  authority.  One 
is  not  liable  as  a  nominal  partner  be- 
cause others  use  his  name  as  that  of  a 
member  of  a  firm,  without  his  consent, 
although  he  previously  belonged  to  the 
firm ;  provided  he  has  taken  the  proper 
steps  to  notify  the  public  of  his  retire- 
ment. Newsome  v.  Coles,  2  Camp.  617. 
And  the  plaintiff  should  be  prepared  to 
show  that  the  acts  of  the  defendant, 
which  he  relies  on  as  acts  of  partnership 
were  done  by  the  defendant,  with  full 
knowledge  and  deliberation  on  his  part. 

[170] 


See  Eox  v.  Clifton,  6  Bing.  776,  4  M.  & 
P.  713. 

(i)  Ex  parte  Jackson,  1  Vcs.  131.  The 
general  rule,  as  well  as  the  exceptions 
to  it  which  may  possibly  occur,  are  well 
illustrated  by  the  case  of  Ex  parte  Peele, 
6  Ves.  602.  There  Kirk,  a  warehouse- 
man, carrying  on  business  under  the  firm 
of  Kirk  &  Company,  being  indebted  to 
Sir  Eobert  Peele  for  goods  sold,  after 
that  debt  was  contracted  had  entered 
into  a  treaty  with  Eord,  a  breeches- 
maker,  for  forming  a  partnership.  About 
four  months  afterwards  a  commission  of 
bankruptcy  issued  against  them.  Xo  ar- 
ticles having  been  executed.  Ford  dis- 
puted the  point  of  partnership,  which 
was  tried  at  law,  and  the  partnersiiip 
was  established  upon  the  evidence  of 
acts  done.  A  petition  was  presented  by 
Sir  Robert  Peele  to  prove  his  debt  as  a 
joint  debt.  In  support  of  the  petition 
the  affidavit  of  one  Copeland  stated,  that 
it  was  agreed  that  the  separate  debts  of 
Kirk  should  be  assumed  by  the  partner- 
ship; that  entries  were  made  in  the 
books  with  the  knowledge  of  Ford  ;  and, 
particularly,  that  the  goods  furnished  by 
the  petitioner  were  entered  at  a  reduced 
price.  This  was  opposed  by  the  affida- 
vit of  Ford,  denying  the  agreement,  or 
even  knowledge  of  these  circumstances. 
Lord  Eldo)i :  "  I  agree  it  is  settled  that 
if  a  man  gives  a  partnership  engage- 
ment in  the  partnership  name,  with  re- 
gard to  a  transaction,  not  in  its  nature 
a  partnership  transaction,  he  who  seeks 
the  benefit  of  that  engagement  must  be 
able  to  say  that,  although  in  its  nature 
not  a  partnership  transaction,  yet  there 
was  some  authority  beyond  tlie  mere 
circumstance  of  partnership  to  enter  into 
that  contract,  so  as  to  bind  the  partner- 
ship, and  then  it  depends  upon  the  de- 


CH. 


XII.] 


PARTNEKSHIP. 


167 


not  always  nor  necessarily  this  effect.  Some  knowledge  and 
assent  of  this  payment  must  be  brought  home  to  the  new- 
partner,  and  perhaps  some  evidence  of  assent  by  the  creditor 
to  the  transfer  of  the  debt  from  the  old  to  the  new  firm,  (y) 
The  liability  of  an  incoming  partner  for  old  debts  is  not  to 
be  presumed,  (k) 

The  authority  of  a  partner  to  bind  his  firm  rests  indeed 
upon  a  necessity ;  for  mercantile  business  could  not  be  car- 
ried on  by  a  partnership  otherwise,  without  great  inconve- 
nience.    And  it  is  bounded  and  measured  by  this  necessity, 


gree  of  evidence.  Slight  circumstances 
might  be  sufficient  where  in  the  original 
transaction  the  party  to  be  bound  was 
not  a  partner  but  at  the  subsequent 
time  had  acquired  all  the  benefit,  as  if 
he  had  been  a  partner  in  the  original 
transaction  ;  and  it  would  not  be  un- 
wholesome for  a  jury  to  infer  largely 
that  tliat  obligation,  clearly  according  to 
conscience,  had  been  given  upon  an 
implied  authority.  So  here,  if  this  was 
a  case  in  Mhich  it  was  found  upon  the 
trial  that  tliis  man  was  a  partner  upon  a 
long-existing  partnership,  with  a  regu- 
lar series  of  transaction,  books,  &c.,  a 
knowledge  of  what  his  partner  had  been 
doing  might  be  inferred  against  him ; 
that  which  in  common  prudence  he 
ought  to  have  known.  But  that  is  not 
the  case  of  this  partnership  :  it  was  a 
treaty.  It  is  not  even  yet  agreed  how 
the  stock  and  partnership  were  to  be 
formed.  In  the  course  of  that  treaty, 
Ford,  ignorant  of  law,  permits  acts  to 
be  done  which  the  law  holds  to  be  part- 
nersliip  acts.  It  is  a  very  different  con- 
sideration whether  this  man,  so  trepan- 
ned into  a  partnership,  had  got  regular 
books,  &c. ;  and  it  is  difficult  to  say,  not 
only  that  knowing  this  he  had  agreed  to 
it,  but  that  he  knew  it ;  in  which  case  I 
am  afraid  he  must  be  bound.  That  fact 
has  not  been  sufficiently  inquired  into." 
The  order,  therefoi'C,  directed  a  reference 
to  the  commissioners  to  inquire  whether, 
at  the  commencement  of  the  partnership, 
any  debts  due  from  Kirk,  for  his  stock 
in  trade,  were  assumed,  and  any  debts 
to  him  carried  into  the  partnership,  with 
the  knowledge  and  assent  of  Ford. 

ij)  Kirwan  v.  Kirwan,  2  Crompt.  & 
Mces.  617.  In  this  case  it  appeared 
that  A.  kept  an  account  in  the  nature 
of  a  banking  account  with  the  firm  of 
B.  &  Co.,  and  annual  accounts   were 


rendered  to  him.  During  the  time  that 
A.  dealt  with  the  firm,  all  the  partners 
retired  except  C,  who  formed  a  new 
partnership  with  I\.  On  the  accession 
of  K.  a  large  capital  was  brought  into 
the  concern.  A.'s  account  was  then 
transferred  from  the  books  of  the  old  to 
those  of  the  new  partnership,  and  the 
balance  was  struck  annually  as  before  : 
and  A.,  until  his  death,  which  happened 
about  three  years  afterwards,  received 
sums  on  account,  and  interest  on  his 
balance  from  the  new  firm,  in  the  same 
manner  as  before.  Upon  tlie  death  of 
A.,  his  administrators  brouglitan  action 
against  the  quondam  partners  and  C.  to 
recover  the  balance,  and  in  that  action 
the  quondam  partners  contended  that 
their  responsibility  had  shifted  to  C.  & 
K.,  and  it  was  argued  in  their  behalf 
that  the  transfer  of  the  account  into  the 
books  of  the  new  firm,  and  the  payments 
of  money  to  A.,  amounted  to  evidence 
against  K.  that  he  intended  to  take  the 
debt  upon  him.  But  the  Court  of  Ex- 
chequer were  of  opinion  that  no  infer- 
ence of  that  sort  could  be  drawn,  in  the 
absence  of  any  proof  of  A.'s  assent  to 
the  substitution  of  K.  as  his  debtor,  for 
the  original  partners  ;  and  BoUand.  B., 
observed  further,  that  there  was  nothing 
to  show  that  K.  undertook  to  answer  for 
the  debts  of  the  old  firm,  and  the  proba- 
bilities were  that  he  would  not  incur 
further  responsibilities.  And  although 
the  account  was  transferred  from  the 
old  to  the  new  firm,  the  learned  judge 
conceived  that  there  might  be  many 
ways  in  which  interest  might  be  paid 
without  K.  being  aware  of  it;  and  the 
manner  of  keeping  the  accounts  led  to 
the  supi^osition  that  be  was  not  aware 
of  it.  See  also  Ex  parte  Sand  ham,  4 
Deacon  &  Chitty,  812. 

{k)  See  Catt  v.  Howard,  3  Starkie,  5. 

[171] 


168*  THE  LAW  OF   CONTRACTS.  [BOOK  I. 

SO  that  the  partnership  is  not  bound  by  the  acts  or  contracts 
of  any  partner,  not  within  the  legitimate  scope  of  the  part- 
nership business.  (Jck)  An  illustration  of  this  may  be  found 
in  the  rule  which  is  held  by  authorities  of  great  weight,  that 
one  partner  cannot  bind  his  firm  by  a  submission  to  arbi- 
tration, without  specific  authority  from  his  copartners ;  the 
reason  given  for  this  rule  being,  that  a  partner  has  no  implied 
authority,  except  so  far  as  is  necessary  to  carry  on  the  busi- 
ness of  the  firm.  (J)  Another  reason  is  also  given,  that  such 
*  implied  authority  would  deprive  the  other  partners  of  their 
legal  rights  or  remedies, 

SECTION  XIII. 

POWER   OF   A  MAJORITY. 

Whether  the  majority  of  the  partners  of  a  firm  can  bind 
the  minority,  is  not  yet  quite  determined  by  authority.  Some 
cases  show  a  disposition  to  admit  this  power,  but  to  confine 
its  exercise  to  the  internal  concerns  of  the  firm,  or  to  those 
which  are  of  little  importance.  The  authorities  on  this  sub- 
ject will  be  found  in  our  notes,  [m)     We  think  a  distinction 

{kk)  Dickinson  v.  Valpy,  10  E.  &  Cr.  opinion  is  given  with  considerable  cau- 

128  ;  Sandilands  v.  Marsh,  2  B.  &  Akl.  tion,  and  it  may  perhaps  be  more  safe 

673;  Sims  v.  Brutton,   1  E.  L.  &  E.  to  say,  that  tlie  power  of  the  majority  to 

446.     One  partner  cannot  bind  the  firm  bind  the  minority  is  confined  to  the  or- 

or  transfer  its  property  for  his  private  dinary  transactions  of  the  partnership, 

debt.     Kemeys   v.  Richards,  11    Barb.  See   6   Vescy,  777;  5  Bro.  P.  C.  489. 

312;  Lanier  v.  McCabe,  2   Flor.    32;  It  is   true  that  in  one  case  it  has  been 

unless  the  other  partners  authorize  or  held  that  in  all  sea  adventures  the  acts 

ratify  the  act.   Wheeler  v.  Kice,  8  Gush,  of  the  majority  shall  bind  the  whole ; 

205.  but  in  that  case  provision  to  that  effect 

{})  Stead  V.  Salt,  3  Bing.  101 ;  Kart-  was  made  by  deed.     Falkland  v.  Che- 

haus  V.  Ferrer,  1  Peters,  228 ;  Bucha-  ney,  5  Bro.  P.  C.  476.     So  in  Const  v. 

nan  v.  Curry,  19  Johns.  137;  Harring-  Harris,  Turn.  &  Russ.  525.  Lord^/cZoM's 

ton  V.  Higham,  13  Barb.  660;  S.  C.  15  opinion  was  in  favor  of  the  power  of  a 

Barb.  524.     But  see  Wilcox  v.  Single-  majority  to  bind  the  minority,  provided 

tary,  Wright  R.  420;  Southai'd  v.  Steele,  their  conduct  was  6o?ia  ,/ic/e.     His  lord- 

3  Monroe,  435 ;  Armstrong  v.  Robinson,  ship  said :  —  "I  call  that  the  act  of  all 

5  Gill  &  Johns.  412;  Taylor  u.  Coryell,  which  is  the  act  of  the  majority,  pro- 

12  Serg.  &  Rawle,  243.  vided  all  are  consulted,  and  the  majority 

[m)  It  has  been  laid  down  by  a  act  bona  fide"  The  majority  of  part- 
learned  writei',  (Chitty's  Laws  of  Com-  ners  do  not  represent  the  whole  body, 
merce,  vol.  3,  p.  236,)  that  in  the  ab-  except  when  the  voice  of  the  minority 
sence  of  any  express  stipulation  a  ma-  has  been  called  for.  In  such  case  the 
jority  must  decide  as  to  the  disposition  court  will  take  the  opinion  of  the  minor- 
of  the  partnership  property.    But  this  ity  to  have  been  fairly  overruled.     See 

[172] 


CH.  XII.]  PARTNERSHIP.  *169 

might  be  drawn  on  principle,  between  partnerships  made  by 
articles,  and  by  their  provisions  not  determinable  by  either 
party  at  pleasure,  and  those  which  by  mutual  consent  may 
be  dissolved  and  terminated  at  once  by  either  party,  at  his 
own  will  and  pleasure.  In  the  former  case,  it  might  be  said 
that  the  majority  should  not  be  permitted  to  govern,  because 
the  minority  have  no  refuge,  no  escape  by  dissolution  ;  and  if 
controlled  absolutely  by  the  majority,  they  might  be  made  to 
incur  unreasonable  danger.  But  where  any  dissenting  part- 
ner may  dissolve  the  partnership  at  pleasure,  then  the  majority 
should  govern.  Because  that  is  but  saying  to  the  minority, 
choose  either  to  go  on  with  us  in  the  transaction  we  propose 
*and  approve,  or  leave  us  to  go  on  by  ourselves,  as  you  prefer. 
Where  the  copartnership  is  determinable  at  the  will  of  any 
partner,  the  rule  that  the  majority  may  govern  only  termi- 
nates a  partnership  between  disagreeing  partners.  Where 
the  partnership  is  not  determinable  at  pleasure,  it  may  be  said 
that  the  rule  that  a  minority  may  arrest  or  prohibit  a  transac- 
tion which  they  do  not  approve,  gives  them  in  fact  a  power 
to  terminate  a  copartnership  at  pleasure,  because  if  they  can 
arrest  one  transaction,  they  may  all.  This  is  possible  ;  but 
the  inconveniences  resulting  from  it  seem  to  be  less  than  those 
which  might  come  from  permitting  a  bare  majority  to  retain 
the  capital  of  copartners,  and  employ  it  in  transactions  which 
they  disapprove,  and  expose  it  to  hazards  they  are  unwilling 
to  encounter.  Moreover,  the  opposite  rule  —  that  the  major- 
ity might  govern  —  would  give  to  them  the  power  of  dissolv- 
ing the  partnership  at  pleasure ;  because,  if  they  wished  for 
a  dissolution,  they  could  always  propose  transactions  so 
adverse  to  the  views  or  interests  of  the  minority  as  to  com- 
pel them  to  assent  to  a  dissolution  as  their  only  escape.  It 
must  be  regarded  as  certain  that  a  majority  cannot  compel 
a  minority  to  extend  the  business  of  the  partnership  to 
transactions  beyond  their  original  intention,  or  otherwise 
make  a  material  change  in  the  business,  not  contemplated 


also  Ivirk  v.  Hodgson,  3  Johns.  Ch.  400 ;    Kent's  Coram.  45,  and  note ;  Story  on 
Wilkins  V.  Pearce,  5  Denio,  541  ;  Robin-     Tart.  ^  123,  and  notes, 
son   V.  Thompson,  1   Vernon,  4G5  ;   3 


15 


[173] 


170*  THE   LAW   OF   CONTRACTS.  [BOOK  I. 

in  the  formation  of  the  partnership,  nor  sanctioned  by  all  the 
partners. 


SECTION  XIV. 

OF   DISSOLUTION. 

The  dissolution  of  a  partnership  does  not  affect  the  liabi- 
lity of  the  partners  for  former  debts,  but,  in  general,  prevents 
the  incurring  of  a  new  joint  liability.  And  it  is  important 
to  know  what  makes  a  dissolution.  Where  a  partnership  is 
not  to  endure  for  a  time  certain  by  the  articles  of  copartner- 
ship, or  where  that  time  has  expired,  it  may  be  dissolved  at 
the  pleasure  of  any  partner,  (n)  Whether,  when  the  partner- 
*ship  is  by  articles  which  stipulate  its  continuance  for  a  speci- 
fied period,  one  partner  may  dissolve  it  within  that  period,  is 
not,  perhaps,  quite  certain.  By  the  civil  law,  such  dissolution 
is  permitted,  on  the  ground  that  it  would  be  useless  and  mis- 
chievous to  hold  reluctant  partners  together,  (o)  In  England 
the  weight  of  authority  is  decidedly  opposed  to  such  dissolu- 
tion, as  a  breach  of  contract  (p)  ;  still,  it  is  difficult  to  deny 
that  one  may  assign  his  interest,  and  this  would  operate  a 
dissolution ;  or  he  might  contract  a  debt,  and  let  his  interest 
be  taken  in  execution.  A  court  of  equity  might  interfere  to 
prevent  such  assignment ;  but  would  not,  in  case  of  debt. 


(n)  Griswoldi'.Waddington,  15  Johns.  Milton  Stage  Co.  18  Verm.  107,  it  was 

82.  —  But  notice  should  be  given  to  the  held,  where  one  partner  gave  the  other 

other  partner.  Ncroti'.Burnand,4Russ.  notice  that  the  copartnership  was  dis- 

260;  Peacock  I'.  Peacock,  16  Ves.  50. —  solved,  but  this  was  not  assented  to  by 

This  should  be  a  reasonable  notice  where  the  otlier,  and  the  parties  did  not  after- 

the  articles  are  totallj'-  silent  upon  the  wards  act  upon  it,  that  it  did  not  operate 

subject,  and  where,  without  such  notice,  as  a  dissolution  of  the  firm, 

injury  would  be  inflicted,  or  fraud  indi-  (o)   Vinnius  in   Ins.  3,  26,   4  ;  Fer- 

cated.     Howell  v.  Harvey,  5  Ark.  280.  riere  in  Id.  tome  V.  156  ;  L)ig.  17, 2,  14 ; 

—  The  duration  may  be 'gathered  from  Domat,   b.  1,  tit.    8,  §  5,   art.  1-8,  by 

the  terms  of  the  articles,  although  not  Strahan. 

expressly  provided    for.      Wheeler   v.  (p)  Peacock  v.  Peacock,  16  Ves.  56  ; 

Van  Wart,  2  Jurist,   252.     See    also  Crawshay  v.  Maule,  1  Swanst.  495.  See 

Crawshay    v.    Collins,    15    Ves.    227  ;  Pearpoint  v.   Graham,  4  Wash.  C.  C. 

Wilson  V.  Greenwood,  1   Swanst.  480  ;  234,  where  Washington,  J.  distinctly  af- 

Washburn  v.  Goodman,  17  Pick.  519. —  firms  the  rule  indicated  by  the  English 

In  the  late  case  of  Sanderson  v.  The  authorities. 

[174] 


CH.  XII.] 


PARTNERSHIP. 


•171 


unless  there  was  collusion,  or  the  creditor's  interest  could  be 
otherwise  secured,  {q) 

It  has  been  questioned  whether  a  court  would  infer  an 
agreement  for  a  continuance  of  the  partnership  for  a  definite 
period,  from  circumstances  ;  as  the  taking  of  a  lease  of  an  es- 
*tate  to  be  used  as  partnership  property,  or  the  like.  But  it 
may  well  be  doubted,  whether  such  an  inference  would  be 
drawn  merely  from  circumstances,  unless  they  made  the 
agreement  quite  certain,  (r) 

Any  assignment  of  a  copartner's  interest  in  the  partnership 
funds  operates  ipso  facto  a  dissolution  ;  although  the  assign- 
ment was  made  only  to  give  a  collateral  security.  (5)     And 


(q)  Jlarquand  v.  N.  Y.  Man.  Co.  17 
Johns.  525.  In  this  case,  the  assignment 
by  one  partner  of  all  his  interest  in  the 
partnership  was  held  to  dissolve  it,  al- 
though by  the  articles  it  was  to  continue 
till  two  partners  should  demand  its  dis- 
solution. In  Skinner  v.  Dayton,  19 
Johns.  538,  it  was  held  that  the  partner- 
ship is  dissoluble  at  the  pleasure  of 
any  partner,  although  he  has  entered 
into  a  covenant  for  its  continuance  for 
seven  years  — the  only  consequence  be- 
ing that  he  thereby  subjects  himself  to  a 
claim  for  damages  for  a  breach  of  his 
covenant.  See  Mason  v.  Connell,  1 
Wharton,  388  ;  Whitton  v.  Smith,  1 
Freem.  Ch.  (Miss.)  231.  In  Bishop  v. 
Breckles,  1  Hoffm.  Ch.  534,  the  question 
was  considered  doubtful,  but  the  rule  of 
the  civil  law  deemed  more  reasonable 
and  the  refusal  of  one  partner  to  pro- 
ceed properly  in  the  business  of  the 
partnership,  was  held  sufficient  cause 
for  a  decree  of  dissolution.  Per  Vice- 
Chancellor :  "  The  law  of  the  court, 
then,  requires  something  more  than  the 
mere  will  of  one  party  to  justify  a  dis- 
solution. But  it  seems  to  me  that  but 
little  should  be  demanded.  The  prin- 
ciple of  the  civil  law  is  the  most  wise. 
Why  should  this  com-t  compel  the  con- 
tinuance of  a  union,  when  dissension 
has  marred  all  prospect  of  the  advan- 
tages contemplated  by  its  formation  ? 
By  refusing  to  dissolve  it,  the  power  of 
binding  each  other,  and  of  dealing  with 
the  partnership  property,  remains,  when 
all  confidence  and  all  combination  of 
effort  is  at  an  end.  The  object  of  the 
contract  is  defeated." 


(?•)  Crawshay  v.  Maule,  1  Swansc. 
495,  508,  521 .  Lord  Eldon  :  "  Without 
doubt,  in  the  absence  of  an  express, 
there  may  be  an  implied  contract,  as  to 
the  duration  of  a  partnership.  But  I 
must  contradict  all  authority,  if  I  say, 
that  wherever  there  is  a  partnership,  the 
purchase  of  a  leasehold  interest  of 
longer  or  shorter  duration  is  a  circum- 
stance from  which  it  is  to  be  inferred 
that  the  partnership  shall  continue  as 
long  as  the  lease.  On  that  argument, 
the  court  holding  that  a  lease  of  seven 
years  is  proof  of  partnership  for  seven 
j-ears,  and  a  lease  of  fourteen  of  a  part- 
nership for  fourteen  years,  must  hold 
that  if  the  partners  purchase  a  fee- 
simple,  there  shall  be  a  partnership  for- 
ever." See  Marshall  v.  Marshall,  cited 
2  Bell's  Comm.  641,  n.  3,  and  643,  n.  1. 
(s)  Horton's  Appeal,  13  Penn.  67; 
Parkhurst  v.  Kinsman,  1  Blatch.  488  ; 
Marquand  v.  Kew  York  Manuf.  Co.  17 
Johns.  525.  —  In  Whitton  v.  Smith,  1 
Freem.  (Miss.)  231,  it  was  held  that  a 
sale  or  assignment  by  one  partner  of  all 
his  interest  in  the  partnership  property, 
operates  as  a  dissolution,  ipso  facto,  al- 
though the  partnership  articles  provide 
for  a  continuance  of  the  partnership  for 
a  definite  period.  —  See  Conwell  v. 
Sandidge,  5  Dana,  213  ;  Cochran  v. 
Perry,  8  Watts  &  Serg.  262.  — But  the 
true  principle  seems  to  be  stated  in  Taft 
V.  Buffum,  14  Pick.  322.  In  this  case, 
one  of  four  members  of  a  firm  assigned 
the  whole  of  his  interest  in  all  the  per- 
sonal and  real  estate  of  the  firm  to  one 
of  his  copartners,  but  still  continued  to 
transact  the  business  of  the  firm  in  the 

[175] 


172* 


THE   LAW   OF     CONTRACTS. 


[book  I. 


an  assignment  by  one  partner  of  his  share  of  the  profits  to 
*anothcr  partner  is  a  dissolution  of  the  partnership,  because 
the  essence  of  that  is  a  participation  of  the  profits,  (i) 

As  death  operates  of  itself  a  dissolution,  (w)  so  in  England 
civil  death  has  the  same  effect ;  as  outlawry,  or  attainder  for 
treason  or  felony.  We  have  not  this  civil  death  in  this 
country  ;  and  imprisonment  for  a  term  of  years,  or  even  for 
life,  would  probably  have  only  the  effect  of  other  incapacity. 
That  is,  it  would  not  be  a  dissolution  of  the  partnership,  nor 
cause  a  dissolution  at  once,  proprio  vigore,  but  it  would  be 
good  ground  for  applying  to  any  court,  having  authority,  to 
grant  a  dissolution.  When  either  partner  becomes  disabled  to 
act,  or  when  the  business  becomes  wholly  impracticable,  a  court 
of  equity  would  dissolve  the  partnership,  or  treat  it  as  dissolv- 


same  manner  as  before,  until  the  failure 
of  tlie  company  ;  a  suit  was  commenced 
against  the  remaining  tliree  members  of 
the  firm ;  they  pleaded  in  abatement  the 
non-joinder  of  the  party  who  had  so  as- 
signed his  share,  and  the  court  held 
that  a  conveyance  by  a  partner  of  all  his 
interest  in  all  the  real  and  personal  estate 
of  the  firm  to  one  of  his  copartners,  does 
not  ipso  facto  dissolve  the  copartnership  ; 
it  is  only  evidence  tending  to  show  a  dis- 
solution. In  this  case  the  court  say  that 
a  person  may  still  be  a  partner,  though 
he  ceases  to  have  any  property  in  the 
stock  of  a  partnership,  on  the  principle 
that  two  persons  may  become  jiartners, 
one  furnishing  money  or  goods,  and  the 
other  skill  or  labor  ;  or  after  persons 
have  entered  into  a  partnership,  and 
each  has  furnished  capital,  one  may, 
•with  the  consent  of  his  associates,  and 
for  good  consideration,  as  of  great  skill 
or  labor,  withdraw  his  funds  or  share  in 
the  stock,  and  still  continue  to  be  a 
member  of  the  firm.  Putnam,  J.  re- 
marked :  "  We  think  that  such  an  ar- 
rangement would  not  necessarily  operate 
as  a  dissolution  of  the  connection."  He 
adds:  "A  majority  of  the  court  are  of 
opinion  that  it  [the  fact  of  the  sale  by 
one  partner]  was  evidence  in  the  case, 
wliich  might  or  might  not  prove  a  disso- 
lution, as  other  facts  might  be  proved  in 
the  case,  all  of  which  should  have  been 
left  to  the  jury,  to  determine  the  fiict 
whether  the  partnership  had  been  dis- 
solved or  not.    For  example ;  if,  after  a 

[176] 


sale,  the  partner  assigning  his  interest 
had  ceased  to  Jiave  any  concern  in  the 
establishment,  had  entered  into  other  bu- 
siness on  liis  own  separate  account,  or, 
as  it  might  be,  had  removed  to  a  foreign 
country  or  place,  and  there  carried  on 
business  for  himself,  or  lived  upon  his 
own  funds  or  otherwise;  upon  such  evi- 
dence we  should  all  think  that  the  jury 
ought  to  find  that  the  copartnership  was 
dissolved.  On  the  other  hand,  if  (as  in 
the  present  case  it  is  found)  the  partner 
so  assigning,  after  the  conveyance,  con- 
tinued to  act  as  a  partner,  making  him- 
self liable  as  such  by  drafts  and  other 
partnership  business,  just  as  he  had  done 
before  the  conveyance  ;  then  it  would 
seem  to  a  majority  of  the  court  that  the 
jury  ought  to  find  that  the  partnership 
was  not  dissolved."  Coll.  on  Part. 
^  110.— See  Buford  v.  McNeeley,  2 
Dev.  Eq.  481  ;  Dana  v.  Lull.  17  Verm. 
390. 

(I)  Heath  v.  Sansom,  4  B.  &  Ad. 
175. 

(m)  VuUiamy  v.  Noble,  3  Meriv.  593 : 
Murray  v.  Mumford,  6  Cowen,  441  ; 
Canficid  v.  Hard,  6  Conn.  184  ;  Burwell 
V.  Mandeville,  2  How.  560  ;  Knapp  v. 
McBride,  7  Ala.  19. —  In  such  case  the 
dissolution  takes  effect  from  the  time  of 
the  death,  however  numerous  the  asso- 
ciation, and  this  not  only  as  to  the  de- 
ceased partner,  but  also  as  to  all  of  the 
survivors.  Dyer  v.  Clark,  5  Met.  575  ; 
Scholefield  v.  Eichelberger,  7  Pet.  586. 
And  the  same  rule  applies  to  a  silent 


CH.  XII.]  PARTNERSHIP.  *173 

ed,  as  the  justice  of  the  case  might  require,  (uu)  The  contract 
of  partnership  is  mutual;  and  it  would  be  obviously  unjust 
to  hold  one  party  to  his  contract,  when  it  had  become  im- 
possible for  the  other  to  fulfil  his  part.  If  the  party  so 
disabled  from  active  aid,  was,  by  the  terms  of  the  contract, 
only  a  silent  or  dormant  partner,  only  contributing  capital, 
and  sharing  with  his  partner  the  profit  and  loss  arising  from 
the  use  made  of  the  capital  by  the  active  partner,  the  above 
reason  would  seem  not  applicable,  because  his  capital  might 
remain  as  before.  But  in  this  case,  if  an  application  comes 
from  the  active  partner,  he  certainly  should  be  permitted  to 
renounce  the  benefit  of  the  capital  under  such  circumstances, 
if  he  wished  to  do  so.  And  if  the  application  comes  from 
the  party  owning  the  capital,  or  his  representatives,  they  as 
certainly  ought  to  be  permitted  to  withdraw  the  capital  from 
hazards  which  the  owner  could  no  longer  estimate  nor  pro- 
vide for,  nor  advise  in  relation  to  them.  And  we  think  with 
Mr.  Justice  Story  and  JMr.  Chief  Justice  Parker,  that  it  may 
well  be  doubted  whether  the  rule  of  law  should  not  be  that 
*  absolute  insanity,  or  any  equivalent  disability,  operates  at 
once,  and  ipso  facto,  a  dissolution,  (v) 

Bankruptcy  of  the  firm,  or  of  one  partner,  operates  an  im- 
mediate dissolution,  (iv)     Insolvency  under  the  statutes  would 

partner.      Washburn  v.   Goodman,  17  court  through  whose  decree  in  equity  a 

Pick.  520.  dissolution   could   have   been   effected. 

{uu)  Leaf  I'.  Coles,  12  E.  L.  &  E.  117.  Admitting  it  to  be  correct  in  its  fullest 

(v)  Story  on  Partn.  §  295;  Jones  v.  extent,  however,  it  would  not  affect  this 

Noy,  2  Myl.  &  K.  125.     In  Isler  v.  Ba-  case,  for  each  partner  has  an  interest  by 

ker,  6  Humph.  ^5,  it  was  held,  that  an  the  partnership  contract,  and  the  interest 

inquisition  of  lunacy,  found  against  a  of  one  partner  would  not  be  terminated 

member  of  a  partnership,  ipso  facto  dis-  by  the  insanity  of  another.     In  making 

solves  the  partnership.     See  also  Gris-  a  sale,  or  contract,  he  does  not  act  as 

wold  y.  Waddington,  15  Johns.  57;  Da-  agent,  but  in  his  own  right;   and  the 

vis  V.  Lane,  10  N.  H.  161,  where  Parker,  partnership  name  may  be  used  by  one, 

C.  J.,  is  reported  to  have  said :  "  It  has  without   any  supposition   that  another 

been  held,  in  England,  that  the  insanity  acts,  individually,  or  has  any  knowledge 

of  one  partner  does  not  operate  as  a  or  volition  in  relation  to   the   matter, 

dissolution  of  the  partnership,  but  that  But  so  long  as  the  partnership  continues, 

object  must  be  attained  through  a  court  the  act  of  one  binds  the  others ;  and  as 

of  equity.     Sayer  v.  Bennet,  cited  2  Ves.  it  is,  in  its  effect,  the  act  of  all  the  part- 

&  Bea.  30.3  ;  Gow  on  Part.  [272.]     But  ners,  it  may  deserve  great  consideration 

the  soundness  of  the  principle  may  per-  whether  the  insanity  of  one,  in  the  ab- 

haps  be  doubted.     Waters  v.  Taylor,  2  sence  of  any  stipulation  to  the  contrary, 

Ves.  &  Bea.  30.3 ;  Griswold  v.  Wadding-  does  not  operate  ipso  facto  as  a  dissolu- 

ton,   15    Johns.   57,  82.      It    certainly  tion  of  the  partnership  itself " 

could  not  have  been  applied  here  prior  [lo)  Eox   v.    Hanbury,  Cowper,  448. 

to  1832,  as  we  had  before  that  time  no  Lord  Mansfield.    "An    act    of   bank- 

[177] 


-173 


THE  LAW   OF   CONTRACTS. 


[BOOK  I. 


have  the  same  effect;  (x)  but  not  the  mere  insolvency  which 
is  only  an  inability  to  pay  debts,  until  a  refusal  to  pay ;  and 
probably  not  until  interference  by  attachment  or  other  legal 
process  with  the  firm,  by  a  creditor  of  the  firm,  or  of  an  in- 
debted partner.  In  the  last  case  it  would  seem  to  operate  as 
a  transfer  of  the  partner's  interest,  (ij) 

Whether  a  partnership  is  absolutely  dissolved  or  only  sus- 
pended where  the  partners  are  domiciled  in  different  coun- 
tries, by  the  breaking  out  of  a  war  between  the  countries,  may 
not  be  positively  settled,  but  the  weight  of  authority  is  in  fa- 
vor of  the  dissolution,  (z) 

Although  the  death  of  a  partner  operates  a  dissolution  of 


ruptcy  by  one  partner  is  to  many  pur- 
poses a  dissolution  of  the  partnership, 
by  virtue  of  tlie  relation  in  the  statutes, 
■which  avoid  all  the  acts  of  a  bankrupt 
from  the  day  of  his  bankruptcy;  and 
from  the  necessity  of  the  thing,  all  his 
property  being  vested  in  the  assignees, 
who  cannot  carry  on  a  trade."    See  Wil- 
son V.  Greenwood,  1   Swanst.  482 ;  Ex 
parte  Sinitli,  5  Ves.  295  ;  Ex  parte  Wil- 
liams, 1 1  Ves.  5 ;  Crawshay  v.  Collins,  15 
Ves.  218;  Button  v.  Morrison,  17  Ves. 
193  ;  Griswold  v.  Waddington,  15  Johns. 
82;  S.  C.  16  Johns.  491  ;  Marquand  v. 
N.Y.Man.  Co.  17  Johns.  535;  Arnolds. 
Brown,  24  Pick.  89 ;  Atwood  v.  Gillett, 
2  Doug.  (Mich.)  206;  Collyer  on  Part. 
B.  1,  ch.  2,  sect.  2 ;  Story  on  Part.  §  313. 
But  "an   act  of  bankruptcy,  however, 
does   not  dissolve   the   partnership  in- 
stantcr.     It  must  be  followed  by  a  fiat 
and   adjudication.      '  The   adjudication 
that  he  is  a  bankrupt,'  said  Lord  Lough- 
borough, 'is  what  severs   the  partner- 
ship.' "     Collyer   on   Part.   §    111;    Ex 
parte  Smith,  5  Ves.  295  ;  Story  on  Part. 
§  314.     The  English  law  gives  effect  to 
the  dissolution  from  the  declaration  of 
bankruptcy  under  a  commission ;   but 
this  relates  back  to  the  act  of  bankrupt- 
cy, and  vests  the  property  in  the  assign- 
ees  from  that   period  by  operation  of 
law.     Fox  V.  Ilanbury,  supra;  Ex  parte 
Smith,  5  Ves.  296 ;  Barker  v.  Goodair, 
11  Ves.  83;  Thomason  v.  Frere,  10  East, 
418;  3  Kent,  Comm.  59. 

(x)  Williamson  v.  Wilson,  1  Bland, 
418 ;  Go  wan  v.  Jeffries,  2  Ash.  305,  and 
cases  cited  supra. 

(y)  The  insolvency  of  a  partnership 
does  not  per  se  dissolve  it.    Arnold  v. 
[178] 


Brown,  24  Pick.  93.  Morton,  J.  "It  is 
further  contended  for  the  plaintiffs  that 
the  partnership  was  dissolved.  There 
is  no  pretence  that  the  partners  intended 
to  dissolve  the  partnership.  If  it  was 
done  at  all  bj'  them  it  was  the  effect  of 
their  acts  against  their  intentions.  The 
insolvency  of  one  or  both  the  partners, 
we  think,  would  not  produce  this  effect. 
The  insolvency  of  one  might  furnish  to 
the  other  sufficient  ground  for  declaring 
a  dissolution.  But,  in  this  State,  the 
inability  to  pay  the  company  or  the 
private  debts  of  the  partners  would  not 
per  se  operate  as  a  dissolution.  In  Eng- 
land, bankruptcy,  and  in  some  of  our 
States,  where  insolvent  laws  exist,  legal 
insolvency  may  produce  a  dissolution. 
Wherever  the  one  or  the  other  operates 
to  vest  the  bankrupt's  or  insolvent's  pro- 
perty in  assignees,  or  other  ministers  of 
the  law,  it  would  produce  that  effect." 

(z)  Griswold  v.  WadcTmgton,  1 5  Johns. 
57,  16  Johns.  438.  In  this  case  the  au- 
thorities and  principles,  governing  con- 
tracts with  persons  domiciled  in  an 
enemy's  country,  were  fully  reviewed 
by  Chancellor  Kent  in  the  Court  of 
Errors.  McConnell  v.  Hector,  3  B.  & 
P.  113;  Scholefield  v.  Eichelberger,  7 
Peters,  586.  The  partnership  in  such 
cases  will  be  illegal,  notwitlistanding 
one  or  more  partners  are  resident  in  a 
neutral  country.  The  San  Jose  Indiano, 
2  Gallis.  268 ;  The  Franklin,  6  Robin- 
son, (Adm.)  127.  And  the  property  of 
a  house  of  trade  established  in  an  ene- 
my's country  is  condemnable  as  prize, 
whatever  may  be  the  domicil  of  the 
partners.  The  Freuudschaft,  4  Wheat. 
105;  Story  on  Part.  ^  316. 


CH.   XII.] 


PARTNERSHIP. 


-173 


the  partnership,  the  articles  of  copartnership  may  provide  for 
its  continuance,  by  an  agreement  that  the  executors,  admin- 
istrators, heirs,  or  other  designated  person,  shall  take  the  place 
of  a  deceased  partner,  (a) 

When  a  partner  dies,  the  partnership  property  goes  to  the 
survivors  for  the  purpose  of  settlement,  and  they  have  all  the 
power  necessary  for  this  purpose,  and  no  more,  (b)     They 


(a)  Wrexham  v.  Huddleston,  1  Swanst. 
514,  note;  Crawshayw.  Maule,  1  Swanst. 
520 ;  Pearce  v.  Chamberlain,  2  Ves.  Sen. 
33;  Balmaiu  v.  Shore,  9  Ves.  500;  War- 
ner V.  Cunninoham,  3  Dow,  Pari.  Cas. 
76;  Gratz  v.  Bayard,  11  S.  &  R.  41; 
Knapp  V.  McBride,  7  Ala.  28.  And 
such  express  agreement  for  the  con- 
tinuance of  the  partnership  after  the 
death  of  one  partner  is  necessary,  al- 
though the  partnership  is  for  a  term  of 
years.  Gillespie  v.  Hamilton,  3  Madd. 
251  ;  Scholefield  v.  Eichelberger,  7  Pe- 
ters, 586 ;  Pigott  v.  Bagley,  McCleland 
&  Younge,  575.  It  is  not  a  settled  ques- 
tion whether  stipulations  in  the  articles 
of  partnership,  providing  for  its  continu- 
ance after  the  death  of  a  partner  for  the 
benefit  of  the  heirs,  is  binding  on  them. 
Louisiana  Bank  v.  Kenner's  Succession, 
1  Louis.  (Miller,)  384.  But  according 
to  Chancellor  Kent,  "  the  better  opinion 
is,  that  they  are  not  anywhere  absolutely 
binding.  It  is  at  the  option  of  the  re- 
presentatives, and  if  they  do  not  consent, 
the  death  of  the  party  puts  an  end  to  the 
partnership."  3  Kent,  Coram.  57,  note  ; 
Pigott  V.  Bagley,  McCleland  &  Younge, 
569 ;  Kershaw  v.  Matthews,  2  Russ.  62. 
—  A  partner  too  may  by  his  ivill  provide 
that  the  partnership  shall  continue  not- 
withstanding his  death ;  and  if  it  is  con- 
sented to  by  the  surviving  partner  it 
becomes  obligatory;  but,  in  that  case, 
that  part  of  his  property  only  will  be 
liable,  in  case  of  bankruptc}',  which  he 
has  directed  to  be  embarked  in  the  trade. 
Ex  parte  Garland,  10  Ves.  110;  Thomp- 
son V.  Andrews,  1  Mylne  &  Keen,  116: 
Pitkin  V.  Pitkin,  7  Conn.  307  ;  Burwell 
V.  Mandeville's  ExV,  2  Howard,  560, 
576.  The  court  in  this  case  said : — "By 
the  general  rule  of  law  every  partnership 
is  dissolved  by  the  death  of  one  of  the 
partners.  It  is  true  that  it  is  competent 
for  the  partners  to  provide  by  agreement 
for  the  continuance  of  the  partnership 
after  such  death  ;  but  then  it  takes  place 
in  virtue  of  such  agreement  only,  as  the 


act  of  the  parties,  and  not  by  mere  ope- 
ration of  law.  A  partner,  too,  may  by 
his  will  provide  that  the  partnership 
shall  continue  notwithstanding  his  death ; 
and  if  it  is  consented  to  by  the  surviving 
partner,  it  becomes  obligatory,  just  as  it 
would  if  the  testator,  being  a  sole  trader, 
had  jjrovided  for  the  continuance  of  his 
trade  by  his  executor,  after  his  death. 
But  then  in  each  case  the  agreement  or 
authority  must  be  clearly  made  out; 
and  third  persons,  having  notice  of  the 
death,  are  bound  to  inquire  how  far  the 
agreement  or  authority  to  continue  it 
extends,  and  what  funds  it  binds,  and  if 
they  trust  the  surviving  party  beyond 
the  reach  of  such  agreement,  or  author- 
ity, or  fund,  it  is  their  own  fault,  and 
they  have  no  right  to  complain  that  the 
law  does  not  afford  them  any  satisfactory 
redress.  A  testator,  too,  directing  the 
continuance  of  a  partnership,  may,  if  he 
so  choose,  bind  his  general  assets  for  all 
the  debts  of  the  partnership  contracted 
after  his  death.  But  he  may  also  limit 
his  responsibility,  either  to  the  funds 
already  embarked  in  the  trade,  or  to  any 
specific  amount  to  be  invested  therein 
for  that  purpose  ;  and  then  the  creditors 
can  resort  to  that  fund  or  amount  only, 
and  not  to  the  general  assets  of  the  tes- 
tator's estate,  although  the  partner  or 
executor,  or  other  person  carrying  on 
the  trade,  may  be  personally  responsible 
for  all  the  debts  contracted." 

(b)  Ex  parte  Ruffin,  6  Ves.  119,  126 ; 
£'.c  par^e  Williams,  li  Ves.  5;  Craw- 
shay  V.  Collins,  15  Ves.  218;  Peacock 
V.  Peacock,  16  Ves.  49,  57  ;  Harvey  v. 
Crickett,  5  M.  &  S.  336;  Barney  v. 
Smith,  4  H.  &  J.  495;  Murray  v. 
Mumford,  6  Cowen,  441 ;  Washburn  v. 
Goodman,  17  Pick.  519;  Story  on  Part. 
§  325-329,  344,  346  ;  Collyer  on  Part. 
I  118.  But  in  Buckley  v.  Barber,  1  E. 
L.  &  E.  506,  Baron  Farke  doubts  whe- 
ther surviving  partners  have  a  power  to 
sell  and  give  a  good  legal  title  to  the 
share  of  the  partnership   property  be- 

[179] 


- 173  THE  LAW  OF  CONTRACTS.  [BOOK  I. 

are  tenants  in  common  with  the  representatives  of  the  de- 
ceased, as  to  the  choses  in  possession.  And  they  have  a  lien 
on  them  to  settle  the  affairs  of  the  concern,  and  pay  its 
debts,  (c) 

If  the  survivors  carry  on  the  concern,  and  enter  into  new 
transactions  with  the  partnership  funds,  they  do  so  at  their 
peril ;  and  the  representatives  of  the  deceased  may  elect  to 
call  on  them  for  the  capital  with  a  share  of  the  profits,  or 
with  interest,  (d) 

A  court  of  equity  will  interfere  and  decree  a  dissolution, 
upon  a  case,  distinctly  made  out,  of  positive  and  injurious 
wrong,  done  by  one  or  more  of  the  partners,  against  the  in- 
terest of  the  firm,  (e)  and  when  called  upon  to  settle  the  affairs 
of  a  partnership,  it  will  respect  any  stipulations  between  the 
partners  as  to  the  mode  of  settlement.  In  the  absence  of  such 
stipulations  it  will  be  governed  by  the  last  settled  account, 
both  as  to  its  result  and  its  method,  unless  the  account  be 
set  aside  for  fraud,  actual  or  constructive,  or  be  open  to  objec- 
tion as  oppressive  and  unreasonable.  (/) 

longing  to  the  executors  of  the  deceased,  Russ.  345  ;  S.  C.  15  Ves.  218  ;  3  Kent, 

even  when  they  sell  in  order  to  pay  the  Comm.  64  ;  Story  on  Part.  §  233,  329, 

debts  of  the  deceased  and  of  themselves,  343;  Collyer  on  Part.  §   130,  324,  335, 

and  decides  that  at  all  events  the  sur-  and  notes.     But  a  partner  appointed 

vivors  have  no  power  to  dispose  of  it  receiver  is  not  held  as  partner  to  account 

otherwise  than   to  pay  such  debt,  cer-  for  profits  for  partnership  money  invest- 

tainly  not  to  mortgage  it  together  with  ed  in  trade.     Whitesides  v.  Lafferty,  3 

their  own  as  a  security  for  a  debt  prin-  Humph.  150. 

cipally  due  from  them,  and  in  part  only  (e)  Tattersall  v.  Groote,  2  Bos.  &  Pul. 

from  the  deceased.  131  ;   Ex  parte   Broome,  1    Rose,  69  ; 

(c)  Ex  parte  Ruffin,  6  Ves.  119:  Ex  Hamil  v.  Stokes,  4  Price,  161;  S.  C 
parte  Williams,  11  Ves.  5;  Story  on  Daniel,  20;  Oldakery.  Lavender,  6  Sim. 
Part.  ^  326.  239  ;  Green  v.  Barrett,  1  Sim.  45 ;  Jones 

(d)  Brown  v.  Litton,  1  P.  Wms.  140  ;  v.  Yates,  9  B.  &  Cr.  532. 
Hammond  v.  Douglas,  5  Ves.  539  ;  Fea-  (/)  Jackson  v.  Sedgwick,  1  Swanst. 
therstonaugh  v.  Fenwick,  17  Ves.  298;  460,  469;  Pettyt  v.  Janeson,  6  Madd. 
Heathcote  v.  Hulme,  1  Jac.  &  Walk.  146;  Oldaker  v.  Lavender,  6  Simons, 
122;  Sigourncy  v.  Munn,  7  Conn.  11;  239;  Desha  v.  Sheppard,  20  Ala.  747; 
Booth  V.  Parks ;  Crawshay  v.  Collins,  2  Story  on  Part.  §  349,  206. 

[ISO] 


CH. 


XII.| 


PARTNERSHIP. 


*174 


SECTION  XV. 

OF  THE  RIGHTS  OF  CREDITORS  IN  RESPECT  TO  PARTNERSHIP 

FUNDS. 


The  property  of  a  partnership  is  bound  to  the  payment  of 
the  partnership  debts,  and  the  right  of  a  private  creditor  of 
one  copartner  to  that  partner's  interest  in  the  property  of  the 
firm,  is  postponed  to  the  right  of  the  partnership  creditor,  (g) 
*But  difficult  questions  sometimes  arise  where  the  private  cre- 
ditor seeks  to  attach,  or  levy  upon,  the  partnership  property, 
or  the  interest  of  the  indebted  partner  therein.  Where  at- 
tachment by  mesne  process  exists,  such  attachment  is  allowed ; 
but  it  is  generally  made  subject  to  the  paramount  rights  of 
the  partnership  creditors,  (h)     And  such  attachment  is  de- 


(g)  Murrill  v.  Neill,  8  How.  414; 
Pierce  v.  Jackson,  6  Mass.  24.3  ;  Tappau 
V.  Blaisdell,  5  N.  H.  190;  Brewster  i'. 
Hammett,  4  Conn.  540;  Commercial 
Bank  v.  Wilkins,  9  Greenl.  28 ;  Douglas 
V.  Winslow,  20  Maine,  89  ;  Donelson  v. 
Posey,  1.3  Ala.  (N.  S.)  752;  Filley  v. 
Phelps,  18  Conn.  294;  Pearson  v.  Keedv, 
6  B.  Monr.  128;  Black  v.  Bush,  7  Id. 
210 ;  Glenn  v.  Gill,  2  Maryl.  1.  And  if 
the  partners  sell  the  partnership  pro- 
perty for  the  purpose  of  paying  the 
private  debt  of  one  partner  such  sale  is 
null  and  void  as  to  the  creditors  of  the 
firm.  Person  v.  Monroe,  1  Foster,  462. 
—  If  the  individual  partners  have  no 
lien  on  the  partnership  funds  for  the 
payment  of  partnership  liabilities,  the 
creditors  of  the  partnership  are  entitled 
to  no  preference  over  the  creditors  of 
the  individual  partners  in  attaching  its 
property.  Kice  v.Barnard,20 Verm.479. 
And  this  preference  is  denied  to  the  cre- 
ditors of  the  partnership,  where  there 
has  been  a  bond  fide  sale  of  the  partner- 
ship effects  without  the  reservation  of  a 
lien.  Ketchum  v.  Durkee,  1  Barb.  Ch. 
480;  Keese  v.  Bradford,  13  Ala.  837. 
See  Smith  v.  Edwards,  7  Humph.  106. 
An  assignment  by  partners  of  their  joint 
and  separate  property  for  the  payment 
of  their  debts,  with  preference  to  certain 
partnership  creditors  and  certain  indi- 
vidual creditors,  has  been  held  valid. 
Kirby  v.  Schoonmaker,  3  Barb.  Ch.  46, 


VOL.  I. 


16 


50. — In  Vermont,  the  creditors  of  the 
partnership,  in  attaching  partnership 
property,  are  at  law  entitled  to  no  pre- 
ference to  creditors  of  an  individual 
partner.  Reed  v.  Shepardson,  2  Verm. 
120;  Clarky.  Lyman,  8  Verm.  290.  But 
in  equity  the  partnership  effects  are 
pledged  to  each  partner  until  he  is  re- 
leased from  all  his  partnership  obliga- 
tions, and  are  first  chargeable  with  the 
claims  of  the  partnership  creditors,  not- 
withstanding prior  attachments  of  the 
separate  creditors.  Washburn  v.  Bank 
of  Bellows  Falls,  19Verm.278;  Bardwell 
V.Perry,  19  Id.  292. 

(A)  Pierce  v.  Jackson,  6  Mass.  242. 
In  this  case  an  attachment  of  partnership 
property  for  a  partnei-ship  debt  was  held 
to  prevail  over  a  prior  attachment  of  the 
same  property  for  the  separate  debt  of 
one  of  the  partners.  Parsons,  C.J.  "At 
common  law,  a  partnership  stock  be- 
longs to  the  partnership,  and  one  partner 
has  no  interest  in  it  but  his  share  of  what 
is  remaining  after  all  the  partnership 
debts  are  paid,*he  also  accounting  for 
what  he  may  owe  to  the  firm.  Conse- 
quently, all  the  debts  due  from  the  joint 
fund  must  first  be  discharged,  before  any 
partner  can  appropriate  any  part  of  it  to 
his  own  use,  or  pay  any  of  his  private 
debts ;  and  a  creditor  to  one  of  the  part- 
ners cannot  claim  any  interest  but  what 
belongs  to  his  debtor,  whether  his  claim 
be  founded  on  any  contract  made  with 

[181] 


175* 


THE   LAW   OF   CONTKACTS. 


[book  I. 


feated  by  the  mere  insolvency  of  the  firm,  although  the  part- 
nership creditors  *have  commenced  no  action  for  the  recovery 
of  their  debts,  {i)  But  where  one  partner  is  dormant,  the  cre- 
ditor of  the  other  is  not  then  postponed  in  his  attachment  of 
the  stock  in  trade,  to  a  creditor  of  the  same  firm  who  has  dis- 
covered the  dormant  partner,  and  makes  him  defendant,  {j) 


his  debtor,  or  on  a  seizing  of  the  goods 
on  execution."    Phillips  v.  Bridge,  1 1  Id. 
249;  Newman  v.  Bagley,  16  Pick.  572; 
Allen  V.  Wells,  22   Pick.  450;    Trow- 
bridge V.  Cnshman,  24  Id.  310;  Com- 
mercial Bank  v.  Wilkins,  9  Greenl.  28; 
Smith  V.  Barker,  1  Fairf.  458  ;  Douglas 
V.  Wmslow,  20  Maine,  89.    Weston,  C  J. 
"  The  interest  of  each  partner  is  in  his 
portion   of  the  residuum,  after  all  the 
debts  and  liabilities  of  the  firm  are  liqui- 
dated and  discharged.     Equity  will  not 
aid  the  separate  creditor,  until  the  part- 
nership claims  are  first  adjusted.     And 
they  will  interpose  to  aid  the  creditors 
of  the   firm,  when   a  separate   creditor 
attempts  to  withdraw  funds,  in  regard 
to  which  they  have  a  priority.     In  this 
State,  and  in  Massachusetts,  a  separate 
creditor  may  attach  the  goods  of  a  firm, 
so  fur  as  his  debtor  has  an  interest  in 
them,  subject  to  the  paramount  claims 
of  the  creditors  of  the  firm."  —  Tappan 
r.  Blaisdell,  5  N.  H.  190.     Richardson, 
C.J.  .  "According  to  the  old  cases  in 
the  courts  of  law,  the  separate  creditor 
took  the  goods  of  the  partners,  and  sold 
the  share  of  his  debtor,  without  inquiring 
what  were  the  rights  of  the  other  part- 
ners, or  what  was  the  real  share  of  each. 
Blackhurst  v.  Clinkard,  1  Show.  1 69  ;  1 
Salk.  .392  ;  Comyns's  R.  277.     But  the 
true  nature  of  a  partnership  seems  to 
have  been   better  understood   in  more 
modern  times,  and  it  is  now  settled  that 
each  partner  has  a  lien  on  the  partner- 
ship property,  in  respect  to  the  balance 
due  to  him,  and  the  liabilities  he  may 
have  incurred  on  account  of  the  partner- 
ship."    Morrison  v.  Bipdgett,  8   N.  H. 
238;  Page  v.  Carpenter,  10  N.  H.  77; 
Dow  r.  Say  ward,  12  Id.  276 ;  Brewster 
V.  Hammett,  4   Conn.  540;  W^ashburn 
V.  The  Bank  of  Bellows  Falls,  19  Verm. 
278;  In  the  Matter  of  Smith,  16  Johns. 
102 ;  Bobbins  v.  Cooper,  6  Johns.  Ch. 
186.     But  where  a  partnership  was  dis- 
solved, and  a  creditor  of  the  partnership 
afterwards  took  the  joint   and  several 
note   of  the   individual   partners,  held, 

[182] 


that  he  could  not  be  regarded  as  a  cre- 
ditor of  the  partnership,  and  entitled  to 
preference  as  such.  Page  v.  Carpenter, 
10  N.  H.  77. 

(?■)  Pierce  v.  Jackson,  6  Mass.  242; 
Fisk  V.  Herrick,  G  Id.  271.  In  the  latter 
case  the  court  said  :  "  Before  either  part- 
ner can  rightfully  claim  to  his  own  use, 
or  for  the  payment  of  his  own  debts,  any 
of  the  partnership  effects,  the  partner- 
ship must  be  solvent,  and  he  must  not 
be  a  debtor  to  it."  —  Rice  v.  Austin,  17 
Id.  206  ;  Commercial  Bank  v.  Wilkins, 
9  Greenl.  28 ;  Lyndon  v.  Gorham,  1 
Gall.  368.  "  The  general  rule  undoubt- 
edly is,  that  the  interest  of  each  partner 
in  the  partnership  funds  is  only  what  re- 
mains after  the  partnership  accounts  are 
taken ;  and  unless,  upon  such  an  ac- 
count, the  partner  be  a  creditor  of  the 
fund,  he  is  entitled  to  nothing.  And  if 
the  partnership  be  insolvent,  the  same 
effect  follows." 

(j)  The  reason  of  this  exception  to 
the  general  doctrine  is,  that  the  public 
rely  on  the  personal  credit  of  the  osten- 
sible owner,  and  not  on  that  of  the 
dormant  partners.  Lord  v.  Baldwin, 
6  Pick.  348,  351.  "  The  case  before 
us  is  that  of  a  dormant  partnership, 
which  is  necessarily,  from  its  very  cha- 
racter, unknown  at  the  time  the  lia- 
bility is  incurred.  All  the  creditors 
sold  their  goods  or  made  their  contract 
with  the  ostensible,  visible  partner ;  they 
trusted  to  him  personally,  and  to  the 
goods  upon  which  he  was  trading,  as 
his.  The  dormant  partner  is  brought 
to  light  by  ex  post  facto  investigation  ; 
and  he  is  made  responsible,  not  because 
he  was  trusted,  but  because  he  secretly 
enjoyed  the  profits  of  the  business.  Now 
in  such  case,  the  reason  for  giving  pre- 
ference to  such  creditors  as  may  first 
discover  his  liability,  so  that  stock  osten- 
sibly belonging  to  the  visible  partner 
shall  first  be  applied  to  the  satisfaction 
of  their  debts,  does  not  exist."  .  .  . 
"  The  question  now  is,  whether,  when  all 
the  creditors  have  trusted  the  man  of 


CH.  XII.] 


PARTNERSHIP. 


•176 


But  this  would  seem  not  to  be  the  case  where  the  first  at- 
taching creditor's  debt  had  no  reference  to  the  partnership 
business,  and  the  debt  of  the  second  creditor  had  such  re- 
ference, (k)  The  same  *rule  is  applied  to  attachments  by- 
trustee  process,  and  to  direct  attachments.  (/) 

Formerly,  both  in  England  and  in  this  country,  the  princi- 
ple of  moieties  prevailed.  That  is,  the  private  creditor  took 
the  proportion  of  the  partnership  stock  which  belonged  by- 
numerical  division  to  his  debtor,  (m)     But  now,  both  there 


business  and  apparent  owner  of  tlic 
goods,  any  one  of  them,  who  is  behind 
the  rest  in  his  attachment,  shall  sup- 
plant tliein  and  gain  priority  because 
he  lias  discovered  this  concealed  liabi- 
lity. At  the  time  the  debt  was  created, 
he  stood  upon  the  same  footing  witii 
the  rest ;  lie  trusted  John  Brown  and 
the  goods  in  his  possession  ;  so  did  they. 
They  have  taken  possession  first  of  the 
fund  whicii  was  held  out  to  the  public 
as  the  means  of  credit ;  arrd  it  might  be, 
and  proliably  was  in  this  very  case,  that 
the  goods  attached  are  the  identical 
goods  which  they  sold  to  the  party 
sued.  There  would  be  then  no  pre- 
tence of  equity,  and  we  think  not  of 
law.  in  allqwing  a  preference  founded 
upon  no  meritorious  distinction  of  cir- 
cumstances." French  v.  Chase,  6  Greenl. 
166.  The  authority  of  the  two  preced- 
ing cases  is  fully  attirmed  in  Cammack 
V.  Johnson,  1  Green,  Ch.  1G.3.  See  also 
Van  Valen  v.  Russell,  13  Barb.  590. 

(k)  Witter  v.  Richards,  10  Conn.  37. 
This  case  determines  that  a  first  attach- 
,  ing  creditor,  who  has  dealt  with  a  part- 
ner in  the  course  of  the  business  of  Ike  part- 
nership, hut  at  the  same  time  in  igno- 
rance of  its  existence,  shall  not  be  post- 
poned to  subsequent  attaching  creditors, 
to  wiiom  the  dormant  partners  were 
known  when  the  business  transactions 
took  place,  or  subsequently  disclosed 
before  their  attachments,  but  that  he 
shall  be  postponed  if  his  claims  did  not 
arise  from  a  partnership  transaction, 
while  that  of  the  subsequent  attaching 
creditor  did.  The  court  distinguish 
Lord  V.  Baldwin  from  the  case  before 
them,  and  remark  :  '■  The  result  in  that 
case  is  perfectly  compatible  with  the 
decision  in  this;  and  it  is  apparent  that 
the  court  meant  only  to  decide  the  case 
before  them  ;  for  they  say,  '  AVhether  a 
private  creditor  of  his  could  seize  pro- 


perty so  situated,  and  hold  it  against 
the  ostensible  owner,  is  a  question  of  a 
very  different  nature.'"  351.  See  Al- 
len V.  Dunn,  15  Maine,  292. 

(^)  Fisk  V.  Herrick,  6  Mass.  271; 
Church  V.  Knox,  2  Conn.  514;  Barber 
V.  Hartford  Bank,  9  Id.  407  ;  Lyndon  w. 
Gorham,  1  Gall.  367  ;  Mobley  v.  Lom- 
bat,  7  How.  (Miss.)  318. 

(m)  Hey  don  v.  Hey  don,  1  Salk.  392. 
"  Coleman  and  Heydon  were  copart- 
ners, and  a  judgment  was  against  Cole- 
man, and  all  the  goods  both  of  Coleman 
and  Heydon  were  taken  in  execution, 
and  it  was  held  by  Holt,  C.  J.,  and  the 
court,  that  the  sheriff  must  seize  all,  be- 
cause the  moieties  are  undivided  ;  for  if 
he  seize  but  a  moiety,  and  sell  that,  the 
other  will  have  a  right  to  a  moiety  of 
that  moiety.  But  he  must  seize  the 
whole,  and  sell  a  moiety  thereof  undi- 
vided, and  the  vendee  will  be  tenant  in 
common  with  the  other  partner."  Jacky 
V.  Butler,  2  Ld.  Rayra.  871.  "Two 
joint  partners  are  in  trade.  Judgment 
was  entered  against  one  of  them;  and, 
upon  a.  fieri  facias,  all  the  goods,  being 
undivided,  were  seized  in  execution  ;  and 
upon  application  to  the  King's  Bench 
by  him  against  whom  the  judgment  was 
not,  the  court  held  that  the  sheriff  could 
not  sell  more  than  a  moiety,  for  the  pro- 
perty of  the  other  moiety  was  not  affect- 
ed by  the  judgment,  nor  by  the  execu- 
tion." Bachurst  v.  Clinkard,  1  Show. 
173  ;  Marriott  v.  Shaw,  1  Comvns,  277; 
The  King  v.  Manning,  2  LI.  616.  "If 
A.,  B.,and  Care  partners,  and  judgment 
and  execution  is  sued  against  A.,  only 
his  share  of  the  goods  can  be  sold.  It  is 
true,  the  sheriff'  may  seize  the  whole,  be- 
cause the  share  of  each  being  undivided, 
cannot  be  known;  and  if  he  seize  more 
than  a  third  part,  he  can  only  sell  a 
third  of  what  is  seized,  for  B.  and  C. 
have  an  equal  interest  with  A.  in  the 

[183] 


177* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


and  here,  the  rule  is  well  settled  that  if  partnership  effects 
can  be  taken  either  by  attachment  or  on  execution  to  secure 
or  satisfy  the  debts  of  one  of  the  partners,  this  can  be  done 
only  to  the  extent  of  that  partner's  interest,  and  subject  to 
the  settlement  of  all  partnership  accounts,  (n)  The  levy  of 
execution  does  not  give  the  creditor  a  separate  possession  of 
the  goods.  The  *indebted  partner  had  no  such  possession 
himself;  and  the  levy  gives  to  his  creditor  only  that  which 
the  debtor  had ;  and  that  is  a  right  to  call  for  an  account, 
and  then  a  right  to  the  balance  which  may  be  found  to  be- 
long to  him  upon  a  settlement.  And  it  must  still  be  re- 
garded as  unsettled,  whether  a  sheriff  levying  an  execution 
of  a  separate  creditor  on.  a  partner's  interest,  can  take  any, 
and  if  any  what,  actual  possession  of  the  partnership  pro- 
perty, (o)     Considering  the  great  diversity  of  authority,  and 


goods  seized ;  but  the  sheriff  can  only 
sell  the  part  of  him  against  whom  the 
judgment  and  execution  was  sued."  See 
Eddie  v.  Davidson,  Doug.  650;  Pai'ker 
V.  Pistor,  3  B.  &  P.  288 ;  Wallace  v. 
Patterson,  2  Har.  &  McHen.  463  ;  Lyn- 
don V.  Gorham,  1  Gall.  367  ;  McCarty 
V.  Emlen,  2  Dall.  278  ;  Church  v.  Knox, 
2  Conn.  514.  The  same  rule  is  recog- 
nized at  law  in  Vermont,  but  not  in 
equitv.  Eeed  v.  Shepardson,  2  Verm. 
1 20  ;  'Clark  v.  Lyman,  8  Id.  290 ;  AYash- 
burn  V.  Bank  of  Bellows  Falls,  19  Id.  278. 
(n)  Fox  1-.  Hanbury,  Cowp.445  ;  Ed- 
die V.  Davidson,  Doug.  650;  West  v. 
Skip,  1  Ves.  Sen.  239  ;  Hankey  v.  Gar- 
ratt,  1  Ves.  Jr.  236  ;  Taylor  r.  Fields,  4 
Id.396;  Young  w.Keighley,  15Ves.  557; 
7/!  re  Wait,  1  Jac.  &  Walk.  608,  Lord 
Eldon  ;  Dutton  v.  Morrison,  17  Ves. 
193 ;  Commercial  Bank  v.  Wilkins,  9 
Greenl.  33  ;  Doner  v.  Stauffer,  1  Penn. 
198;  Winston  v.  Ewing,  1  Ala.  {N.  S.) 
129  ;  Story  on  Part.  §  261  ;  Collyer, 
§  822,  note;  Aiile,  note  (h) ;  Crane  v. 
French,  1  Wend.  311  ;  Tappan  v.  Blais- 
dcll,  5  N.  H.  190 ;  Burgess  v.  Atkins, 
5  Blackf.  337,  338.  Dewey,  J.  "  The 
general  rule  of  law  is,  that  in  levying 
an  execution  against  one  partner  for  his 
separate  debt,  the  officer  may  take  pos- 
session of  all  the  joint  property  of  the 
firm,  in  order  to  inventory  and  appraise 
it.  He  has  no  authority  to  divide  it ; 
he  can  only  sell  the  joint  interest  of  the 
debtor,  whatever  it  may  be,  and   the 

[184] 


purchaser  will  stand  in  the  place  of  the 
debtor,  and  hold  the  same  interest  in 
the  joint  concern  which  he  held." 

(o)  In  Scrugham  v.  Carter,  12  Wend, 
isi,  it  was  held  that  replevin  does  not 
lie  against  a  sheriff  in  such  a  case  for 
taking  the  property  and  removing  it  to 
a  place  of  safe  custody,  and  the  remedy 
of  the  other  partners  is  to  obtain  an 
order  staying  proceedings  until  an  ac- 
count be  taken  in  equity.  In  Burrell  v. 
Acker,  23  Id.  606,  he  was  held  author- 
ized to  take  joint  possession,  with  the 
other  partners,  of  the  partnership  pro- 
perty, after  the  levy  and  before  the  sale, 
but  whether  he  was  entitled  to  exclusive 
possession  Avas  not  decided.  The  sub- 
ject was  fully  discussed  by  Mr.  Justice 
Cowen,  in  Phillips  v.  Cook,  24  Wend. 
389,  and  it  was  decided  that,  on  an  exe- 
cution at  law  against  one  of  two  part- 
ners, the  sheriff'mightlawfnlly  seize,  not 
merely  the  moiety,  but  the  corpus  of  the 
joint  estate,  or  the  whole,  or  so  much  of 
the  entire  partnership  effects  as  might 
be  necessaiy  to  satisfy  the  execution, 
and  deliver  the  property  sold  to  the  pur- 
chaser ;  and  if  he  purchases  with  notice 
of  tlie  partnership,  he  takes  subject  to 
an  account  between  the  partners,  and  to 
the  equitable  claims  of  the  partnership 
creditors.  It  has  since  been  held  that  he 
is  equally  subject  to  an  account  whether 
he  had  such  notice  or  not.  Walsh  v. 
Adams,  3  Denio,  125.  The  same  eases 
athrm   his    power   to    deliver  all    the 


CH.   XII.] 


PARTNERSHIP. 


178 


consequent  uncertainty,  as  to  this  power  of  the  sheriff,  the 
question  seems  to  call  for  statutory  provisions ;  but  in  the 


goods  of  the  partnership  to  the  pur- 
chaser. Birdseye  v.  Ray,  4  Hill,  158, 
affirms  Phillips  v.  Cook,  so  far  as  it  re- 
lates to  the  seizure  of  the  whole  of  the 
joint  estate  by  the  sheriif  on  an  execu- 
tion against  one  partner  for  his  separate 
debt.  But  the  sheriff  subjects  himself 
to  an  action  if  he  sells  the  entire  pro- 
perty in  the  goods  of  the  copartner- 
ship or  any  thing  more  than  the  debtor 
partner's  interest  in  them.  Waddell  v. 
Cook,  2  Hill,  47,  and  note;  Walsh  v. 
Adams,  3  Denio,  125. — In  New  York, 
it  is  held  that  neither  a  court  of  law  nor 
of  equity  will  stay  execution  at  law 
against  the  joint  estate  for  a  separate 
debt  until  an  account  be  taken.  Moody 
V.  Payne,  2  Johns.  Ch.  548  ;  In  re  Smith, 
16  Johns.  106,  note ;  Phillips  v.  Cook, 
24  Wend.  389.  See  Reed  v.  Howard, 
2  Met.  36.  But  this  rule  has  been  dis- 
approved. Cammack  v.  Johnson,  1 
Green.  Ch,  168.  —  In  Alabama,  the 
sheriff  is  held  justified  in  taking  exclu- 
sive possession  of  the  goods  of  the  firm 
until  the  aid  of  a  court  of  equity  is  suc- 
cessfully invoked.  Moore  v.  Sample,  3 
Ala.  (N.  S.)  319.— In  New  Hampshire, 
the  right  of  the  sheiiff  to  take  possession 
of  partnership  property,  levied  on  for  the 
private  debt  of  a  partner,  has  been  de- 
nied after  an  elaborate  examination  of 
the^question.  Gibson  v.  Stevens,  7  N.  H. 
352,  357.  Parker,  J.  "  The  specific  pro- 
perty of  a  partnership  cannot  be  law- 
fully taken  and  sold  to  satisfy  thej  pri- 
vate debt  of  one  of  the  partners.  His 
creditor  can  have  no  greater  right  than 
the  debtor  himself  has  individually, 
which  is  a  right  to  a  share  of  the  sur- 
plus. This  is  the  necessary  result  of  the 
doctrine,  that  the  partnership  property 
is  a  fund  in  the  first  place  for  the  pay- 
ment of  the  partnership  debts,  and  that 
the  interest  of  an  individual  partner  is 
only  his  share  of  the  surplus.  5  N.  H. 
1 92,  193,  250  ;  9  Conn.  410.  There  are 
difficulties  in  selling  the  interest  of  one 
partner  upon  an  execution.  Courts  of 
equity  first  direct  an  account,  which 
courts  of  law  cannot  do  ;  and  if  tlie  in- 
terest of  one  partner  may  be  sold  upon 
an  execution  at  law,  it  must  be  left  to  an 
account  afterwards.  Gow  on  Part.  246 
d  seq.,  254.  And  a  question  may  arise 
in  such  case,  whether  the  sale  operates 
as  a  dissolution  of  the  partnership  be- 
16* 


fore  the  time  limited  by  the  articles  of 
copartnership,  or  whether  the  other  part- 
ners are  authorized  to  carry  on  the  trade, 
and  account  at  the  expiration  of  the 
term.  If  the  sheriff  can  sell  only  the 
interest  of  the  partner,  and  not  the 
goods,  he  must  be  liable,  if  he  make 
actual  seizure  of  the  specific  property, 
either  to  the  partnership  or  the  other 
partners.  Wilson  v.  Conine,  2  Johns. 
280.  Especially,  if  he  sell  the  whole,  as 
in  this  case.  1  Gall.  370  ;  15  Mass.  82." 
Morrison  v.  Blodgett,  8  N.  H.  238. 
Parker,  J.  "  If  the  sheriff  cannot  sell 
an  interest  in  specified  portions  of  the 
goods  of  the  partnership,  there  seems  to 
be  no  reason  why  he  should  levy  upon 
those  goods,  and  deliver  them  to  the 
vendee,  or  why  he  should  in  fact  reduce 
them  into  possession.  If  '  in  truth  the 
sale  does  not  transfer  any  part  of  the 
joint  property  so  as  to  entitle  him  '  (the 
vendee)  '  to  take  it  from  the  other  part- 
ner,' (I  Story's  Eq.  626,)  on  what  prin- 
ciple is  the  sheriff  authorized  to^seize 
and  hold  to  the  exclusion  of  the  other 
partners,  what  his  vendee,  after  a  sale  of 
the  interest  of  the  debtor  is  perfected, 
cannot  take  from  them  "?  If  the  sheriff 
sells  '  only  the  interest  of  such  partner, 
and  not  the  effects  themselves,'  (1  Wight- 
wick's  Ex.  R.  50,  cited  2  Johns.  Ch. 
549,)  upon  what  ground  shall  he  seize 
the  effects  which  he  is  not  to  sell  ?  If 
'  the  creditors  of  the  partnership  have  a 
preference  to  be  paid  their  debts  out  of 
the  partnership  funds  before  the  private 
creditors  of  either  of  the  partners,'  and 
this  'is  worked  out  through  the  equity 
of  the  partners  over  the  whole  funds,' 
(1  Story's  Eq.  625,)  that  equity  should 
prevent  them  from  being  deprived  of 
the  means  of  payment  by  reason  of  such 
seizure  by  the  sheriff,  who  can  neither 
sell  the  goods,  nor  pay  the  creditors,  and 
against  whom  they  cannot  proceed,  so 
long  as  he  may  lawfully  hold  the  goods." 
.  .  .  "In  Smith's  case,  16  Johns.  106, 
the  court  after  saying  that  the  separate 
creditor  takes  the  share  of  his  debtor  in 
the  same  manner  as  the  debtor  himself 
had  it,  and  subject  to  the  rights  of  the 
other  partner,  add.  '  The  sheriff  there- 
fore does  not  seize  the  partnership  effects 
themselves,  for  the  other  partner  has  a 
right  to  retain  them  for  the  payment  of 
the  partnership  debts.'  And  in  Cram  v. 
[185] 


179" 


THE   LAW   OF   CONTRACTS. 


[book  I. 


absence  of  such  provisions,  and  on  general  principles,  it  would 
seem  that  the  sheriff  cannot  take  or  give,  by  sale,  specific  pos- 
session of  the  partnership  property.  He  takes  and  can  sell 
only  the  right  and  interest  of  the  indebted  partner  to  and  in 
the  whole  fund. 

Different  rules  and  modes  of  practice  prevail  in  different 
parts  of  this  country.  But  wherever  it  can  be  done,  the 
better  and  safer  way  would  probably  be  for  the  writ  to  be  a 
trustee  process,  or  in  the  nature  of  a  foreign  attachment,  and 
this  should  be  served  on  the  other  partners  as  alleged  trustees, 
and  a  return  made  by  the  sheriff" that  he  had  attached  all  the 
*  right  and  interest  of  the  partner  defendant  in  the  stock  and 
property  of  the  partnership.  So,  after  sale  on  execution,  the 
sheriff"  should  convey  to  the  purchaser  all  the  right  and  in- 
terest of  the  indebted  partner  in  the  stock  and  property  of  the 
partnership.  And  the  purchaser  would  then  have  the  right  to 
demand  an  account,  and  a  transfer  to  him  of  whatever  balance 
or  property  would,  upon  such  account,  have  belonged  to  his 
debtor,  and  perhaps,  have  the  same  right  of  possession,  (p) 


French,  1  Wend.  313,  Chief  Justice  Sa- 
vage, aftei'  considering  the  subject,  says: 
'  The  sheriff  therefore  sells  the  mere 
right  and  title  to  the  partnership  pro- 
perty, but  does  not  deliver  possession.' 
Vide  also  5  N.  H.  193  ;  2  Conn.  516, 
517.  The  conclusion  that  the  sheriff, 
upon  an  execution  against  one  partner, 
is  not  to  deliver  to  his  vendee,  and  is 
not  to  seize  the  partnership  effects,  is 
sustained,  therefore,  not  only  by  the 
reason  of  the  thing,  after  the  adoption  of 
the  general  principle  before  stated,  but 
by  express  authority."  The  doctrine  of 
these  cases  is  affirmed  in  Page  v.  Car- 
penter, 10  N.  H.  77  ;  Dow  v.  Sayward, 
12  Id.  271,  14  Id.  9.  See  Tavlor  v. 
Field,  4  Ves.  396  ;  Johnson  v.  Evans, 
7  M.  &  G.  240,  249,  250,  Tuulal,  C  J.; 
Collycr  on  Part.  B.  iii.  ch.  vi.  sect.  10. — 
In  Newman  v.  Bean,  1  Foster,  93,  it  was 
held,  that  an  action  might  be  maintained 
against  a  third  person  who  seizes  goods 
on  execution  belonging  to  a  partnership, 
for  the  debt  of  an  individual  partner, 
and  excludes  the  other  partners  from 
the  possession  of  them.  See  on  this 
subject  26  Amer.  Jurist,  Art.  3. 

(p)  Morrison  v.  Blodgett,  8  N.  H.  254. 
Parker,  J.     "  Whether,  under  our  pre- 

[186] 


sent  laws,  the  creditor  can  do  more 
than  return  a  general  attachment  of  the 
interest  of  his  debtor  in  the  partnership, 
and  summon  the  other  partners  as  his 
trustees ;  and  what  are  the  effects  of  such 
a  sei'vice  upon  the  rights  and  duties 
of  the  other  partners,  and,  of  course, 
upon  the  action  of  the  debtor  himself  ? 
Whether  it  can  suspend  his  right  to  in- 
terfere with  the  partnership  property,  so 
long  as  the  attachment  exists,  or  whether 
he  may  proceed  to  act  as  partner  until 
judgment  and  sale  upon  execution '? 
And  whether,  after  an  attachment,  the 
creditor  of  any  of  the  partners  may  main- 
tain a  bill  in  equity  for  an  account  be- 
fore a  seizure  and  sale  of  the  interest  of 
the  debtor  on  the  execution "?  are  ques- 
tions which  may  arise,  but  upon  which 
this  case  does  not  call  for  an  opinion." — 
Dow  V.  Sayward,  12  N.  H.276.  Upham, 
J.  "In  the  case  of  Morrison  v.  Blod- 
gett, is  a  very  elaborate  examination  of 
this  question  by  Mr.  Chief  Justice  Par- 
ker, and  the  opinion  of  the  court  is 
strongly  intimated  that  a  general  attach- 
ment of  the  interest  of  a  partner  in  a 
firm  may  be  made,  though  it  is  suggest- 
ed that,  in  order  to  make  the  attach- 
ment   available,  by   obtaining   a  true 


en.  XII.] 


PARTNERSHIP. 


180 


That  the  private  creditors  of  one  of  the  partners  cannot 
reach  the  partnership  funds  until  the  claims  of  the  partnership 
*creditors  are  satisfied,  is  now  the  almost  universal  rule  both  in 
courts  of  law  and  of  equity.  But  whether  the  private  property 
of  a  partner  is  equally  preserved  for  his  private  creditors,  is  not 
perhaps  certain.  At  law,  no  such  rule  seems  to  be  well  esta- 
blished. But  where  the  partnership  has  failed,  and  the  part- 
nership property  is  held  as  a  fund  for  the  partnership  creditors, 
the  justice  of  holding  the  private  property  of  individual  part- 
ners for  the  exclusive  benefit  of  their  private  creditors,  is  ob- 
vious. Then  each  fund  would  be  held  separate  ;  the  partner- 
ship assets  for  the  partnership  creditors,  and  the  assets  of  each 
partner  for  his  own  creditors,  and  only  the  balance  of  each 
fund,  after  the  special  claims  upon  it  were  discharged,  would 
be  applicable  to  the  claims  of  the  other  class,  (q) 


knowledge  of  the  extent  of  the  partner- 
ship interest,  it  might  be  expedient  or 
necessary  to  summon  the  other  parties 
as  trustees.  We  ai-e  unable  now  to  see 
any  better  course  than  was  there  sug- 
gested. There  seems  to  be  no  good 
reason  for  giving  up  the  process  of 
attachment  at  law  in  such  cases,  as  it 
would  probably  in  this  mode  be  ren- 
dered equally  as  effectual  and  prompt 
as  any  other  means  of  securing  the  in- 
terest of  the  debtor  that  might  be  de- 
vised. If  a  process  in  chancery  should 
be  deemed  more  effectual,  still  it  might 
be  desirable  also  to  retain  a  right  of 
attachment  at  law.  See  also  Page  v. 
Carpenter,  10  N.  H.  77."  S.  C.  14  N. 
H.  9,12.  Parker,  C.  J.  "  Neither  will 
the  fact  that  the  interest  of  a  partner  is 
of  a  nature  that  is  incapable  of  actual 
seizure,  and  of  a  reduction  into  posses- 
sion, exempt  it  fi'om  a  seizure  and  sale 
upon  execution.  Equities  of  redemp- 
tion and  other  interests  are  of  that  cha- 
racter, but  are  nevertheless  subject  to  an 
execution  at  law.  It  follows,  then,  that 
the  interest  of  the  defendant  in  the  pro- 
perty of  the  stage  company  was  liable 
to  attachment.  Whatever  may  be  the 
subject  of  levy  and  sale,  may  be  the  sub- 
ject of  attachment.  It  is  true  tiiat  there 
is  difficulty  in  securing  the  interest  of 
one  partner  by  attachment,  so  that  he 
or  his  partners,  through  their  right  to 
hold  the  property,  may  not  impair  the 
security.    This  subject  was  adverted  to 


in  Morrison  v.  Blodgett,  before  cited. 
Perhaps  it  cannot  be  done  without  some 
further  legislation,  unless  it  be  through 
the  aid  of  chancery  by  means  of  an  in- 
junction. But  the  difficulty  of  etiectu- 
ally  securing  the  interest  of  one  partner 
by  an  attachment,  so  that  the  other  part- 
ners, or  the  debtor  himself,  cannot, 
through  the  right  of  the  other  partners 
to  retain  possession  of  the  property,  im- 
pair the  security,  by  no  means  proves 
that  such  interest  is  not  attachable.  It 
maj',  notwithstanding,  be  attached,  and 
the  creditor  will  thereby  gain  a  prior 
right  to  have  it  applied  in  satisfaction 
of  his  judgment.  And  should  the  debt- 
or or  Ids  partners  attempt  to  avoid  the 
effect  of  the  attachment,  the  creditor 
may,  perhaps,  on  application  to  this 
court,  obtain  an  injunction  to  restrain 
them  from  any  acts  inconsistent  with 
his  right  to  have  the  interest  of  his  debt- 
or sold  upon  the  execution."    12,  13, 

(q)  In  the  time  of  Lord  Hardwicke 
joint  creditors  were  allowed  in  bank- 
ruptcy to  prove  their  debts  under  a  se- 
parate commission  against  one  partner 
or  under  separate  commissions  against 
all  the  partners,  but  only  for  the  purpose 
of  assenting  to  or  dissenting  from  the 
certificate,  and  were  considered  to  have 
an  equitable  right  to  the  surplus  of  the 
separate  estate,  after  payment  of  the 
separate  creditors.  Ex  parte  Baudier 
1  Atk.  98;  Ex  parte  Voguel,  1  Atk! 
132  ;  £.cjDarie  Oldknow,  Co.  B.  L.  eh. 

[187] 


180 


THE  LAW   OF   CONTRACTS. 


[BOOK  I. 


The  rights  of  partnership  creditors  to  a  preference  in  the 
distribution  of  the  partnership  property  must  not  be  taken  to 


6,  sect.  15;  Ex  parte  Cobham,  Co.  B. 
L.  ch.  6,  sect.  15.  See  Dutton  v.  Morri- 
son, 17  Ves.  207;  Ex  parte  Farlow,  1 
Eose,  422.  Lord  Thurlow  broke  in 
upon  this  rule,  allowing  joint  creditors 
to  prove  and  take  dividends  under  a 
separate  commission,  and  holding  that 
a  commission  of  bankruptcy  was  an  exe- 
cution for  all  the  creditors,  and  that  no 
distinction  ought  to  be  made  between 
joint  and  separate  debts,  but  that  they 
ought  to  be  paid  ratably  out  of  the  bank- 
rupt's property.     Ex  parte  Havdon,  Co. 

B.  L.  ch.  6.  sect.  15;  S.  C.  1  Bro.  C. 

C.  453:  Ex  parte  Copland,  Co.  B.  L. 
ch.  6,  sect.  15;  S.  C.  1  Cox,  429;  Ex 
parte  Hodgson,  2  Bro.  C.  C.  5 ;  Ex  parte 
Page,  2  Bro.  C.  C.  119;  Ex  parte  Flin- 
tum,  2  Bro.  C.  C.  120.  Lord  Rosslyn 
restored  the  principle  of  Lord  Hard- 
wicke's  rule,  {Ex  parte  Elton,  3  Ves. 
238 ;  Ex  parte  Abell,  4  Ves.  837,)  which 
was  adopted  by  Lord  Eldon  less  out  of 
regard  to  the  reason  of  the  rule  itself 
than  for  the  sake  of  establishing  a  uni- 
form practice.  Ex  parte  Clay,  6  Ves. 
813  ;  Ex  parte  Kensington,  14  Ves.  447  ; 
Ex  parte  Taitt,  16  Ves.  193.  See  his 
remarks  in  Chiswell  v.  Gray,  9  Ves. 
126  ;  Barker  r.  Goodair,  11  Ves.  86,  and 
such  is  the  English  law.  Gow  on  Part. 
312.  There  are,  however,  three  excep- 
tions to  this  rule;  "1st,  where  a  joint 
creditor  is  the  petitioning  creditor  un- 
der a  separate  fiat ;  2d,  where  there  is 
no  joint  estate,  and  no  solvent  partner ; 
3d,  where  there  are  no  separate  debts. 
In  the  first  case  the  petitioning  creditor, 
and  in  the  second  all  the  joint  creditors, 
may  prove  against  the  separate  estate 
pari  passu  with  the  separate  creditors. 
In  the  last  case,  as  there  are  no  separate 
creditors,  the  joint  creditors  will  be  ad- 
mitted parj  passu  with  each  other,  upon 
the  separate  estate."  CoUyer  on  Part. 
§  923  ;  Story  on  Part.  §  378-382.  But 
see  Emanuel  v.  Bird,  19  Ala.  596,  and 
Cleghorn  v.  Ins.  Bank  of  Columbus,  9 
Geo.  319.  The  history  of  the  English 
rule  was  reviewed  in  INIuiTay  i\  IMurray, 
5  Johns.  Ch.  60.  It  has  been  adopted 
by  some  American  courts.  "Woddrop 
V.  Ward,  3  Desaus.  203  ;  Tunno  v.  Tre- 
zevant,  2  Desaus.  270 ;  Hall  v.  Hall,  2 
McCord,  Ch.  302  ;  McCulloch  v.  Da- 
shiell,  1  Harr.  &  Gill.  96 ;  Murrillf.  Neill, 
8   Howard,   414.     See  in  re  Marwick, 

[188] 


Daveis,  229 ;  In  re  "Warren,  Daveis, 
320 ;  Morris  v.  Morris,  4  Grattan,  293. 
In  Jackson  v.  Cornell,  1  Sandf.  Ch. 
348,  the  Assistant  Vice-Chancellor  said: 
— "It  is  not  denied  that  the  rule  of  equi- 
ty is  uniform  and  stringent,  that  the 
partnership  property  of  a  firm  shall  all 
be  applied  to  the  partnei'ship  debts,  to 
the  exclusion  of  the  creditors  of  the  indi- 
vidual members  of  the  firm;  and  that 
the  creditors  of  the  later  are  to  be  first 
paid  out  of  the  separate  effects  of  their 
debtor,  before  the  partnership  creditors 
can  claim  any  thing.  See  Wilder  v. 
Keeler,  3  Paige,  167  ;  Egberts  i-.  Wood, 
3  Paige,  517;  Payne  v.  Matthews,  6 
Paige,  19;  Hutchinson  v.  Smith,  7 
Paige,  26 ;  1  Story's  Eq.  Jur.  §  625,  ^ 
675."  And  it  was  held  in  Jackson  v. 
Cornell' that  a  general  assignment  of  his 
separate  property  made  by  an  insolvent 
copartner,  which  prefers  the  creditors  of 
the  firm  to  the  exclusion  of  his  own,  is 
fraudulent  and  void  as  to  the  latter. 
The  English  rule  has  been  discarded  in 
Pennsylvania.  Bell  v.  Newman,  5  S.  & 
R.  78;' //I  re  Sperry,  1  Ash.  347.  And 
Lord  Thurlow's  rule  prevails  in  Con- 
necticut, although  the  surviving  partner 
be  solvent  and  within  the  jurisdiction  of 
the  court.  Camp  v.  Grant,  21  Conn.  41. 
It  has  been  held  in  Massachusetts  that 
whatever  may  be  the  rule  in  a  court  of 
equity,  an  attachment  of  the  separate 
property  of  a  partner  for  a  partnership 
debt  is  not  defeated  at  law  by  a  subse- 
quent attachment  of  the  same  property 
for  his  separate  debt. — Allen  v.  Wells, 
22  Pick.  450.  Deicey,  J.  '•  It  is  urged, 
however,  on  the  part  of  the  defendants, 
that  as  this  court,  as  a  court  of  law, 
have  long  since  recognized  the  principle 
that  an  attachment  of  the  goods  of  a 
partnership,  by  a  creditor  of  one  of  the 
partners,  is  not  valid,  as  against  an  after 
attachment  by  a  partnership  creditor,  it 
should  also  adopt  the  converse  of  the 
proposition,  giving  a  like  preference  to 
separate  creditors  in  respect  to  the  se- 
parate property.  But  we  think  that 
there  is  a  manifest  distinction  in  the 
two  cases.  The  restriction  upon  sepa- 
rate creditors,  as  to  partnership  property, 
arises  not  merely  from  the  nature  of  the 
debt  attempted  "to  be  secured,  but  also 
from  the  situation  of  the  property  pro- 
posed to  be  attached.    In  such  a  case,  a 


CH.   XII.] 


PARTNERSHIP. 


-180 


extend  so  as  to  affect  a  bond  fide  transmutation  of  partnership 
into  private  property  made  prior  to  or  upon  a  dissolution. 
While  the  partnership  remains  and  its  business  is  going  on, 
whether  it  be  in  fact  solvent  or  not,  any  fair  distribution  of  the 
partnership  effects  among  the  members  of  the  firm  cannot  be 
disturbed  by  any  equities  of  creditors  of  the  partnership,  [qq) 


distinct  moiety  or  other  proportion,  in 
certain  specific  articles  of  the  partner- 
ship property,  cannot  be  taken  and  sold, 
as  one  partner  has  no  distinct  separate 
property  in  the  partnership  eliects.  His 
interest  embraces  only  what  remains 
upon  the  tiual  adjustment  of  the  part- 
nership concerns.  But,  on  the  other 
hand,  a  debt  due  from  the  copartnership 
is  the  debt  of  each  member  of  the  firm, 
and  every  individual  member  is  liable 
to  pay  the  whole  amount  of  the  same  to 
the  creditor  of  the  firm.  In  the  case  of 
the  copartnership,  the  interest  of  the 
debtor  is  not  the  right  to  any  specific 
property,  but  to  a  residuum  which  is 
uncertain  and  contingent,  while  the  in- 
terest of  one  partner  in  his  individual 
property  is  that  of  a  present  absolute 
interest  in  the  specific  property.  Each 
separate  member  of  the  copartnership 
being  thus  liable  for  all  debts  due  from 
the  copartnership,  and  no  objection  aris- 
ing from  any  interference  with  the  rights 
of  others  as  joint  owners,  it  seems  neces- 
sarily to  follow  that  his  separate  pro- 
perty may  be  well  adjudged  to  be  liable 
to  be  attached  and  held  to  secure  a  debt 
due  from  the  copartnership."  And  in 
the  distribution  of  the  estates  of  deceas- 
ed insolvent  debtors  partnership  debts 
are  paid  ratably  with  the  private  claims. 
Sparhawk  v.  Russell,  10  Mete.  305. 
But  in  New  Hampshire  the  English  rule 
has  been  ado]ited  in  tlielaw,  to  its  fullest 
extent,  and  where  real  estate  of  one  part- 
ner was  set  ofi'on  execution  for  a  debt  due 
from  the  partnership,  and  afterwards  the 
same  land  was  set  ofi'for  a  separate  debt 
of  the  same  partner,  the  last  levy  was 
held  to  prevail  over  the  first  and  to  give 
the  legal  title.  Jar  vis  v.  Brooks,  3 
Porter,  136.  — The  conclusion  of  the 
Supreme  Court  of  Vermont  on  this  ques- 


tion is  as  follows:  —  "That  a  partner- 
ship contract  imposes  precisely  the  same 
obligation  upon  each  separate  partner 
that  a  sole  and  separate  contract  does, 
and  that  it  is  not  true  that,  in  joint  con- 
tracts, the  creditor  looks  to  the  credit  of 
the  joint  estate,  and  the  separate  credi- 
tor to  that  of  the  separate  estate ;  and 
that  there  is  no  express  or  implied  con- 
tract resulting  from  the  law  of  partner- 
slnp,  that  the  separate  estate  shall  go  to 
pay  separate  debts  exclusively ;  but  that, 
as  the  partnership  creditors  in  equity 
have  a  prior  lien  on  the  partnership 
funds,  chancery  will  compel  them  to  ex- 
haust that  remedy  before  resorting  to 
the  separate  estate ;  but  that,  beyond 
this,  both  sets  of  creditors  stand  precise- 
ly equal,  both  at  law  and  in  equity." 
Per  lied/ield,  J.  Bardwell  v.  Perry,  19 
Verm.  292,  303.  Mr.  Justice  Story  says 
of  the  English  rule,  "  It  now  stands  as 
much,  if  not  more,  upon  the  general 
ground  of  authority,  and  the  maxim 
stare  decisis,  than  upon  the  ground  of 
any  equitable  reasoning."  Story  on 
Part.  §  377.  And  he  says  further,  ''It 
is  not,  perhaps,  too  much  to  say,  that  it 
rests  on  a  foundation  as  questionable 
and  as  unsatisfactory  as  any  rule  in  the 
whole  system  of  our  jui-isprudence,"  but 
"  should  be  left  undisturbed,  as  it  may 
not  be  easy  to  substitute  any  other  rule 
whicli  would  uniformly  work  with  per- 
fect equality  and  equity."  §382.  Chan- 
cellor Kent,  on  the  other  hand,  remarks, 
"  For  my  part,  I  am  free  to  confess  that 
I  feel  no  hostility  to  the  rule,  and  think 
that  it  is,  upon  the  whole,  reasonable 
and  just."    3  Kent,  65,  note. 

(qq)  Ex  parte  Eufiin,  6  Ves.  119; 
Allen  V.  Center  Valley  Co.  21  Conn- 
130. 

[189] 


185*  THE   LAW    OF   CONTRACTS.  [bOOK  I. 

SECTION  XVI. 
LIMITED   PARTNERSHIPS. 

This  species  of  partnership  has  been  but  recently  intro- 
duced into  this  country,  but  has  already  been  adopted  in  very 
many  of  our  States,  and  promises  to  be  of  great  utilily.  (r) 
We  have  borrowed  it  from  the  continent  of  Europe,  as  it  is 
wholly  unknown  in  English  practice,  and  is  not  recognized 
by  the  common  law  of  England.  The  limited  partnerships 
sometimes  spoken  of  in  English  cases  and  text-books,  mean 
*only  what  may  be  called  joint  adventure,  or. a  partnership 
limited  to  a  particular  business. 

With  us,  a  limited  partnership,  or,  as  it  is  sometimes  called, 
a  special  partnership,  is  a  very  different  thing.  The  purpose 
of  it  is  to  enable  a  party  to  put  into  the  stock  of  a  firm  a 
definite  sura  of  money,  and  abide  a  responsibility  and  share 
a  profit  which  shall  be  in  proportion  to  the  money  thus  con- 
tributed, and  no  more.  By  the  common  law  of  partnership, 
he  who  had  any  interest  in  the  stock,  and  received  any  pro- 
portion of  the  profits,  was  a  partner,  and  as  such  liable  in  so- 
lido  for  the  whole  debts  of  the  firm.  Capitalists  were  there- 
fore unwilling  to  place  their  capital  in  the  stock  of  a  trading 
company,  unless  advantages  were  offered  them  equivalent  to 
this  great  risk.  Men  of  business  capacity,  who  had  only 
their  skill,  industry,  and  integrity,  could  not  always  borrow 
adequate  capital,  because  they  could  not  give  absolute  secu- 
rity ;  and  they  could  not  pay  as  a  premium  for  the  risk  more 
than  legal  interest,  because  the  usury  laws  prohibited  this. 
But  they  may  now  enter  into  an  arrangement  with  a  capital- 
ist, by  which  they  receive  from  him  adequate  means  for  car- 
rying on  their  business  profitably,  paying  him  a  fair  share  of 
the  profits  earned  by  the  combination  of  his  capital  and  their 
labor,  while  he  runs  the  risk  of  losing  the  capital  which  is 
thus  earning  him  a  profit,  but  knows  that  he  can  lose  no 
more. 

(?•)  New  York,  Massachusetts.  Rliode  Carolina,    Gcorp;ia,  Alaliama,   Florida; 

Island,  Connecticut,  Vermont,  New  Jer-  Mississippi,  Indiana,  Michigan,  Illinois, 

sev,    Pennsvlvania,    Maryland,    South  Kentucky.  Virginia. 
[190] 


CH.  XII.]  PARTNERSHIP.  *186 

Partnerships  of  this  kind  being,  as  has  been  stated,  wholly 
unknown  to  the  common  law,  are  authorized  and  regulated 
only  by  statute.  And  these  statutes  differ  considerably  in  the 
several  States.  But  the  provisions  are  generally  to  the  fol- 
lowing effect.  First,  there  must  be  one  or  more  who  are 
g-etieral  partners,  and  one  or  more  who  are  special  partners; 
secondly,  the  names  of  the  special  partners  do  not  appear  in 
the  firm,  nor  have  they  all  the  powers  and  duties  of  active 
members  ;  thirdly,  the  sum  proposed  to  be  contributed  by  the 
special  partners  must  be  actually  paid  in ;  fourthly,  the  ar- 
rangement must  be  in  writing,  specifying  the  names  of  the 
partners,  amount  paid  in,  &c.,  which  is  to  be  acknowledged 
before  a  magistrate,  and  then  recorded  and  advertised,  in  such 
way  as  shall  give  the  public  distinct  knowledge  of  what  it  is, 
*and  who  they  are,  that  persons  dealing  with  the  firm  give 
credit  to.  Besides  these  general  provisions,  others  of  a  more 
particular  nature  are  sometimes  introduced.  Thus,  in  some 
States,  no  special  partnership  may  carry  on  the  business  of 
insurance  or  banking.  And  there  are  often  special  provisions 
to  give  greater  security  to  the  public  and  persons  dealing  with 
such  firms.  But  for  these  we  must  refer  the  reader  to  the 
statutes  of  the  several  States. 

A  special  partner,  complying  with  the  requirements  of  the 
law,  cannot  be  held  as  personally  liable  for  the  debts  of  the 
firm;  although,  of  course,  the  whole  amount  which  he  con- 
tributes goes  into  the  fund  to  which  the  creditors  of  the  firm 
may  look. 

There  has  been  as  yet  very  little  adjudication  of  questions 
which  have  arisen  under  these  statutes  —  none  of  importance, 
that  we  are  aware  of,  but  those  which  determine  that  the 
special  partner  must,  at  his  own  peril,  comply  precisely  with 
the  requirements  of  the  statutes.  Any  disregard  of  them,  or 
want  of  conformity,  although  it  be  accidental  and  entirely 
innocent  on  his  part,  or  any  material  mistake  by  another,  as 
by  the  printer  who  prints  the  advertisement,  deprives  him  of 
the  benefit  of  the  statute.  He  is  then  a  partner  at  common 
law,  and,  as  such,  liable  in  solido  for  the  whole  debts  of  the 
firm,  (s) 

(s)  Hubbard  v.  Morgan,  U.  S.  D.  C.  for  N.  Y.  Mav,  1839,  cited  in  3  Kent 

[191] 


-186 


THE   LAW   OF    CONTRACTS. 


[book  I. 


3G;  Argall  v.  Smith,  3  Denio,  435. 
In  this  case,  which  was  decided  by  the 
Court  of  Errors  of  New  York,  unani- 
mously, it  was  held,  that  the  pul)!ication 
of  the  amount  contributed  by  the  spe- 
cial partner  as  $5,000,  whereas  it  was 
$2,000,  left  upon  him  all  the  liabilities 
of  a  general  partner.  The  argument  of 
Spencer^  Senator,  who  alone  gives  the 
reasons  of  the  decision,  turns  upon  the 
necessity  of  a  true  advertisement ;  he 
regards  an  erroneous  advertisement  as 
no  advertisement  at  all.  But  suppose 
the  error  had  been  the  reverse  of  what 
it  was.     Instead  of  calling  the  contribu- 

[192] 


tion  $5,000,  when  it  was  but  $2,000,  if 
it  had  called  it  $2,000,  when  it  was  in 
fact  $5,000,  it  might  have  been  well 
urged,  in  the  absence  of  all  ill-design  or 
personal  fault  on  the  part  of  the  special 
partner,  that  this  error  could  not  mis- 
lead the  public,  or  any  dealer  with  the 
firm  to  his  injury,  as  it  made  the  grounds 
of  credit  less  than  their  actual  value, 
instead  of,  as  in  the  case  at  bar,  making 
them  more.  But  even  then  the  neces- 
sity of  a  strict  compliance  with  the  pro- 
visions of  the  statute  might  be  sufficient 
to  hold  the  special  partner  as  a  general 
one. 


CH.  xiil]  novation.  187 


CHAPTER  XIIL 


NEW   PARTIES   BY   NOVATION. 


The  term  novation  has  not  been  much  used  in  English  or 
American  law, but  may  be  found  in  some  late  English  cases; 
and  the  thing  itself,  or  this  form  of  contract,  may  be  found  in 
many  cases,  both  in  England  and  in  this  country.  The  word 
is  borrowed  from  the  civil  law,  where  it  forms  an  important 
topic  ;  and  we  may  find  a  clear  statement  of  its  principles  in 
Pothier's  work  on  Contracts,  {ss)  It  is  defined  thus :  a  trans- 
action whereby  a  debtor  is  discharged  from  his  liability  to  his 
original  creditor,  by  contracting  a  new  obligation  in  favor  of 
a  new  creditor,  by  the  order  of  his  original  creditor.  Thus, 
A.  owes  B.  one  thousand  dollars  ;  B.  owes  C.  the  same  sum, 
and  at  the  request  of  C.  orders  A.  to  pay  that  sum,  when  it 
shall  fall  due,  to  C.  To  this  A.  consents,  and  B.  discharges 
A.  from  all  obligation  to  him.  A.  thus  contracts  a  new  obli- 
gation to  C,  and  his  original  obligation  to  B.  is  at  an  end. 
By  the  civil  law,  any  new  contract  entered  into  for  the  pur- 
pose and  with  the  effect  of  dissolving  an  existing  contract 
was  regarded  as  a  novation,  and  in  the  above  case  the  civil 
law  would  recognize  two  sorts  of  contracts  of  novation ;  the 
contract  by  which  A.  is  discharged  from  his  liability  to  B.  by 
contracting  a  new  obligation  to  C,  and  the  novation  by 
which  B.  would  be  discharged  from  his  obligation  to  C.  by 
procuring  A.  as  a  new  debtor.  This  distinction  has  not  been 
preserved  in  the  common  law,  and  the  rights  and  obligations 
of  the  parties  in  both  cases  are  governed  by  the  same  rule. 

A  leading  English  case  on  this  subject  is  Tatlock  v.  Har- 
ris, [t)     It  will  be  seen,  from  the  statement  of  the  cases  in 

(ss)  Part  3,  ch.  2,  art.  1.  favor  of  a  fictitious  person,  (whicli  was 
(I)  3  T.  R.  174.     In  this  case  it  was  known  to  all  parties  concerned  in  draw- 
determined   that   where    a   bill   of  ex-  ing  the  bill,)  and  the  defendant  received 
change    was   drawn   by   the   defendant  the  value  of  it  from  the  second  indorser, 
and  others  on  the  defendant  alone,  in  a  bond  fide  holder  for  valuable  consider- 

VOL.  1.  17  [193] 


188 


THE   LAW   OP   CONTRACTS. 


[book  I. 


the  note,  that  the  principle  deducible  from  them  is,  that  if  A. 
owes  B.,  and  B.  owes  C,  and  it  is  agreed  by  these  three  par- 
ties that  A.  shall  pay  this  debt  to  C,  and  A.  is  by  this  agree- 
ment discharged  from  his  debt  to  B.,  and  B.  is  also  dis- 
charged from  his  debt  to  C,  then  there  is  an  obligation  cre- 
ated from  A.  to  C,  and  C.  may  bring  an  action  against  A.  in 
his  own  name,  [tt) 


ation  might  recover  the  amount  of  it  in 
an  action  against  the  acceptor  for  money- 
paid,  or  money  had  and  received ;  and 
Buller,  J.,  puts  tliis  case:  —  "Suppose 
A.  owes  B.  ;£100,  and  B.  owes  C.  £100, 
and  the  three  meet,  and  it  is  agreed  be- 
tween them  that  A.  shall  pay  C.  the 
£100,  B.'s  debt  is  extinguished,  and  C. 
may  recover  that  sum  against  A."  —  So 
in  Wilson  v.  Coupland,  5  Barn.  &  Aid. 
228,  where  the  plaintiffs  were  creditors 
and  the  defendants  were  debtors  to  the 
firm  of  "  T.  &  Co.,"  and,  by  consent  of 
all  parties,  an  arrangement  was  made 
that  the  defendants  should  pay  to  the 
plaintiffs  the  debt  due  from  them  to  "  T. 
&  Co.,"  it  was  held,  that  as  the  demand 
of  "  T.  &  Co.,"  on  the  defendants  was 
for  money  had  and  received,  the  plain- 
tiffs might  recover  against  the  defend- 
ants on  a  count  for  money  had  and  re- 
ceived, Best,  J.,  saying,  "A  chose  in 
action  is  not  assignable  without  the  con- 
sent of  all  parties.  But  here  all  parties 
have  assented,  and  from  the  moment  of 
the  assent  of  the  defendants  it  seems  to 
mc  that  the  sum  due  from  the  defend- 
ants to  "  T.  &  Co."  became  money  had 
and  received  to  the  use  of  the  plaintiffs." 
The  case  of  Heaton  v.  Angier,  7  New 
Hamp.  397,  furnishes  an  excellent  illus- 
tration of  this  principle.  That  was  an 
action  of  assumpsit  for  a  wagon  sold 
and  delivered.  The  defendant,  having 
bought  the  wagon  of  the  plaintiff  at 
auction,  sold  it  immediately^  afterwards 
on  the  same  day  to  one  John  Chase. 
Chase  and  the  defendant  then  went  to 
the  plaintiff,  and  Chase  agreed  to  pay 
the  price  of  the  wagon  to  the  plaintitf 
for  the  defendant,  and  the  plaintiff' 
agreed  to  take  Chase  as  paymaster. 
ideld,  that  the  debt  due  from  the  de- 
fendant to  the  plaintiff  was  extinguished. 
Green,  J.,  having  cited  tlie  case  put  by 
Buller  in  Tatlock  i\  Harris,  said:  — 
"  The  case  put  by  Buller  is  the  very 
case  now  before  us.  Heaton,  Angier, 
and  Chase  being  together,  it  was  agreed 
between  them  that  the  plaintiff  should 
[194] 


take  Chase  as  his  debtor  for  the  sum 
due  from  the  defendant.  The  debt  due 
to  the  plaintiff  from  the  defendant  was 
thus  extinguished.  '  It  was  an  accord 
executed.  And  Chase,  by  assuming 
the  debt  due  to  the  plaintiff,  must  be 
considered  as  having  paid  that  amount 
to  the  defendant,  as  part  of  tlie  price  he 
was  to  pay  the  defendant  for  the  wagon." 
See  also  Thompson  v.  Percival,  5  ]3arn. 
&  Ad.  925,  3  N.  &  M.  171.— And  in 
such  case  the  defendant's  undertaking 
is  not  to  pay  the  debt  of  a  third  person 
within  the  meaning  of  the  statute  of 
frauds.  Bird  v.  Gammon,  3  Bing.  N. 
C.  883  ;  Meert  v.  Mocssard,  1  Moore  & 
Payne,  8  ;  Arnold  v.  Lvman,  17  Mass. 
400  ;  French  v.  French,  2  M.  &  Gr.  644, 
3  Scott  N.  Ft.  125. 

{tt)  So  if  in  such  case  the  promise  of 
A.  to  pay  C.  is  conditional,  as  to  pay 
whatever  may  hereafter  be  found  due 
from  A.  to  B.,  and  after  such  amount  is 
ascertained,  but  before  it  is  paid,  B.  be- 
comes bankru]it,  still  C.  may  sue  A.  for 
the  amount  of  A.'s  debt  to  B.  Crow- 
foot V.  Gurney,  9  Bing.  372.  See  also 
Hodgson  r.  Auderson,"3  B.  &  C.  842.— 
It  is  to  be  borne  in  mind  that  in  order 
to  constitute  an  assignment  of  a  debt  or 
a  novation,  so  as  to  enable  the  trans- 
feree to  bring  an  action  in  his  own  name 
in  a  court  of  law,  the  assent  of  the  debtor 
to  the  agreed  transfer  is  absolutely  es- 
sential, and  there  must  be  a  promise 
founded  on  suificient  consideration  to 
pay  it  to  the  transferee.  In  erjuif}/,  how- 
ever, it  is  otherwise,  and  there  need  be 
no  promise  by  the  debtor  to  the  assignee 
in  order  to  entitle  him  to  sue  in  his 
own  name.  Lord  Elclon  in  Ex  parte 
South, 3  Swanst.  392:  Tibbits  r.  George, 
5  Ad.  &  Ell.  1 1 5, 1 1 6 :  llobbins  r.  Bacon, 
3  Greenl.  R.  (2d  ed.)  346,  and  note; 
Blin  V.  Pierce,  20  Verm.  25 :  L'Estrange 
V.  L'Estrange,  1  E.  L.  &'e.  153,  and 
note;  Van  Buskirk  i\  Hartford  Fire 
Ins.  Co.  14  Conn.  141  ;  Mandeville  v. 
Welch,  5  Wheaton,  277  ;  Gibson  v. 
Cooke,  20  Pick.  15. 


en.  XIII.] 


NOVATION. 


*189 


This  would  certainly  seem  to  be  in  contradiction  or  excep- 
tion to  the  ancient  rule,  that  a  personal  contract  cannot  be 
assigned  so  as  to  give  the  assignee  a  right  of  action  in  his 
own  name.  But  it  is  not  so  much  an  exception  as  a  different 
thing.  It  is  the  case  of  a  new  contract  formed  and  a  former 
contract  dissolved.  And  the  general  principles  in  relation  to 
consideration  attach  to  the  whole  transaction,  (m)  Thus,  to 
*give  to  the  transaction  its  full  legal  efficacy,  the  original  lia- 
bilities must  be  extinguished.  For  if  the  debt  from  A.  to  B. 
be  not  discharged  by  A.'s  promise  to  pay  it  to  C,  then  there 
is  no  consideration  for  this  promise,  and  no  action  can  be 
maintained  upon  it;  {v)  but,  if  this  liability  be  discharged, 


(k)  Thus  in  order  that  an  assignment 
of  a  chose  in  action  should  be  valid 
against  the  creditors  of  the  assignor,  it 
must  be  bona  fide  and  upon  adequate 
consideration.  Langley  v.  Berry,  14 
New  Ilamp.  82  ;  Giddings  v.  Coleman, 
12  New  Hump.  153.  The  assignment, 
however,  need  not,  altliough  in  writing, 
express  to  be  for  value  received.  John- 
son V.  Thayer,  17  Maine,  401 ;  Legro  v. 
Staples,  ]  6  Maine,  252  ;  Adams  v.  Ro- 
binson, 1  Piclc.  461.  It  is  sufticicnt  if  it 
be  so  in  point  of  fact ;  and  this  must  be 
proved  aliunde  than  from  the  face  of  the 
paper.    Langley  v.  Berry,  supra. 

\v)  Cuxon  V.  Chadley,  3  B.  &  C.  591  ; 
Butterfield  v.  Hartshorn,  7  New  Hamp. 
345.  This  was  an  action  of  assumpsit 
for  money  had  and  received.  Tlie 
plaintiff  held  a  claim  against  the  estate 
of  a  person  deceased.  The  executor  of 
the  estate  sold  a  farm  belonging  thereto 
to  the  defendant,  and  left  in  the  defend- 
ant's liands  a  portion  of  the  purchase- 
money  to  pay  the  plaintiff  and  other 
creditors  their  demands  against  tlie 
estate,  which  the  defendant  promised 
the  executor  to  pay.  This  action  was 
brought  to  recover  the  amount  of  the 
plaintiff's  demand.  Held,  that  he  could 
not  recover.  Upham,  J.  "  The  prin- 
cipal OiUestion  in  this  case  is,  whether 
the  plaintiff  can  avail  himself  of  the 
promise  made  by  the  defendant  to  the 
executor  —  he  never  having  agreed  to 
accept  the  defendant  as  his  debtor,  nor 
having  made  any  demand  of  him  for 
tlic  money  prior  to  the  commencement 

of  this  suit 

In  cases  of  this  kind,  a  contract,  in  order 


to  be  binding,  must  be  mutual  to  all 
concerned  ;  and  until  it  is  completed  by 
the  assent  of  all  interested  it  is  liable  to 
be  defeated,  and  the  money  deposited 
countermanded.  It  seems,  also,  to  be 
clear,  that  no  contract  of  the  kind  here 
attempted  to  be  entered  into  can  be 
made,  without  an  entire  change  of  the 
original  rights  and  liabilities  of  the  par- 
ties to  it.  There  is  to  be  a  deposit  of 
money  for  the  payment  of  a  prior  debt, 
an  agreement  to  hold  the  money  for 
this  purpose,  and  an  agreement  on  the 
part  of  a  third  person  to  accept  it  in 
compliance  with  tiiis  arrangement.  It  is 
made  through  the  agency  of  three  indi- 
viduals, for  the  purpose  of  payment ; 
and  it  can  have  no  other  effect  than  to 
extinguish  the  original  debt,  and  create 
a  new  lialiility  of  debtor  and  creditor 
betwixt  the  person  holding  the  money 
and  the  individual  who  is  to  receive  it. 
On  any  other  supposition  there  would 
be  a  duplicate  liability  for  the  same 
debt ;  and  the  deposit,  instead  of  being 
a  payment,  would  be  a  mere  collateral 
security,  which  is  totally  different  from 
the  avowed  object  of  tlie  parties.  To 
entitle  the  plaintiff  to  recover,  there 
must  be  an  extinguishment  of  the  origi- 
nal debt ;  and  it  is  questionable  whether, 
in  cases  of  this  kind,  any  thing  can 
operate  as  an  extinguishment  of  the 
original  debt,  but  payment,  or  an  ex- 
press agreement  of  the  creditor  to  take 
another  person  as  liis  debtor  in  discharge 
of  the  original  claim."  See  also  War- 
ren V.  Batchclder,  15  N.  II.  129.— 
Wharton  v.  Walker,  4  B.  &  C.  163.  In 
this  case  A.  being  indebted  to  B.,  gave 

[195] 


190 


THE   LAW   OF   CONTRACTS. 


[book  I. 


then  it  is  a  sufficient  consideration ;  and  if  at  the  same  time 
C.  gives  np  his  claim  on  B.  as  the  ground  on  which  B.  orders 
A.  to  pay  C,  then  the  consideration  for  which  A.  promises  to 
pay  C.  may  be  considered  as  moving  from  C.  An  order  ad- 
dressed by  a  creditor  to  his  debtor,  directing  him  to  pay  the 
debt  to  some  one  to  whom  the  creditor  is  indebted,  operates 
as  a  substitution  of  the  new  debt  for  the  old  one,  when  it  is 
presented  to  the  debtor,  and  assented  to  by  him,  and  not  be- 
fore ;  and  also  provided  this  third  party  gives  up  his  original 
claim  against  the  first  creditor,  and  not  otherwise,  (lu)  The 
mutual  assent  of  all  the  three  parties  is  necessary  to  make  it 
an  eflfectual  novation,  or  substitution  ;  for  so  long  as  the 
debtor  has  made  no  promise,  or  come  under  no  obligation  to 
the  party  in  whose  favor  the  order  is  given,  it  is  a  mere  man- 
date, which  the  creditor  may  revoke  at  his  pleasure,  (x)    And 


him  an  order  upon  C,  who  was  A.'s 
tenant,  to  pay  B.  the  amount  that  should 
be  due  from  C  to  A.,  from  the  next 
rent.  B.  sent  the  order  to  the  tenant 
C.,  but  had  not  any  direct  communica- 
tion with  him  upon  the  subject.  At  the 
next  rent-day  C.  produced  the  order  to 
A.,  and  promised  him  to  pay  the 
amount  to  B.,  and  upon  receiving  the 
difference  between  tlie  amount  of  the 
order  and  the  whole  rent  then  due,  A. 
gave  C.  a  receipt  for  the  whole.  B.  af- 
terwards sued  C.  to  recover  the  amount 
of  the  order,  in  an  action  for  money  had 
and  received,  and  upon  an  account 
stated.  It  was  held  by  the  whole  Court 
of  King's  Bench  that  he  could  not  reco- 
ver on  either  count,  because  the  debt 
from  A.  to  B.  was  not  extinguished, 
B'Ji/ky,  J.,  saying,  "If,  by  an  agreement 
between  the  three  parties,  the  plaintiff 
had  undertaken  to  look  to  the  defend- 
ant, and  not  to  his  original  debtor,  that 
would  have  been  binding,  and  the  plain- 
tiff might  have  maintained  an  action  on 
such  agreement  ;  but  in  order  to  give 
him  that  right  of  action  there  must  be 
an  extinguishment  of  the  intermediate 
debt.  No  such  bargain  was  made  be- 
tween the  parties  in  this  case.  Upon 
the  defendant's  refusing  to  pay  the 
plaintiff,  the  latter  might  still  sue  A., 
and  this  brings  the  case  within  Cuxon 
V.  Chadley,  3  B.  &  C.  591."  See  also 
French  v.  French,  2  M.  &  Gr.  644,  3 

[196] 


Scott,  N.  R.  125  ;  Thomas  v.  Schillibeer. 

1  Mees.  &  Welsh.  124;  Moore  v.  Hill, 

2  Peake.  10;  Maxwell  v.  Jameson,  2  B. 
&  Aid.  55  ;  Short  v.  City  of  New  Or- 
leans, 4  Louis.  Ann.  281  ;  Mclvinney  v. 
Alvis,  14  111.  34. 

(iv)  Ford  r.  Adams,  2  Barbour,  Sup. 
Ct.  349.  Where  a  declaration  alleged 
that  one  J.  S.,  being  indebted  to  the 
plaintiff,  made  and  delivered  to  him  his 
order  in  writing,  directed  to  the  defend- 
ant, to  deliver  to  the  plaintiff  or  bearer 
a  certain  quantity  of  wood  ;  and  that 
the  defendant,  being  indebted  to  J.  S., 
in  consideration  thereof  accepted  the 
said  order,  and  promised  to  deliver  the 
wood,  according  to  the  tenor  and  effect 
of  such  order  and  the  acceptance  there- 
of; Helfl,  on  demurrer,  that  the  defend- 
ant's acceptance  of  the  order,  and  his 
promise  to  deliver  the  wood,  were  with- 
out any  consideration,  and  therefore 
void  ;  and  that  the  plaintiff  could  not 
maintain  an  action  against  him  thereon. 

(.r)  Owen  v.  Bowen,  4  Carr.  &  Payne, 
93.  In  this  case  A.  gave  a  sum  of  mo- 
ney into  the  hands  of  B.,  to  pay  to  C, 
but  B.  had  not  paid  it  over.  It  was 
held,  that  if  C.  had  not  consented  to  re- 
ceive this  sum  of  B.,  A.  might  counter- 
mand the  authority  and  recover  it  back 
from  B.  See  also  Gibson  v.  Minet,  1 
Carr.  &  Payne,  247. 


CH.  xiil]  novation.  *191 

if  the  person  in  whose  favor  the  order  is  drawn  has  in  con- 
sideration thereof  discharged  the  debt  due  to  him,  and  so  may 
hold  this  order  as  against  the  creditor  giving  it,  still  it  is  not  a 
novation.  He  must  sue  in  the  name  of  the  party  drawing  the 
order,  unless  the  person  on  whom  it  is  made  has  agreed  with 
him  in  whose  favor  it  is  made  to  comply  with  the  order.  (?/) 
*And  if  the  action  is  brought  in  the  name  of  the  original 
creditor,  it  is  subject  to  the  equitable  defences  which  may 
exist  between  him  and  the  debtor.  But  after  such  assent  or 
agreement  is  given,  then  the  order  is  irrevocable,  and  neither 
party  can  recede  from  the  agreement,  (s)  The  old  debt  is 
entirely  discharged. 

It  will  be  seen,  therefore,  that  in  such  case  the  debtor  does 
not  undertake  to  pay  the  debt  of  another,  but  contracts  an 
entirely  new  debt  of  his  own,  the  consideration  of  which  is 
the  absolute  discharge  of  the  old  debt.  Consequently  this 
new  promise  is  not  within  the  provisions  of  the  Statute 
of  Frauds,  relating  to  a  promise  to  pay  the  debt  of  ano- 
ther, (a) 

There  is  one  point  upon  which  some  uncertainty  exists  as 
to  the  principles  of  the  civil  law  concerning  novation,  but 
upon  which  the  rule  of  the  common  law  is  clear.  If  the  order 
be  for  less  than  the  whole  debt  due  from  him  on  whom  it  is 


(y)  The  agreement  of  all  parties  is  Sup.  Ct.  258;  Hodges  v.  Eastman,  12 
absolutely  essential  to  complete  this  con-  Verm.  358  ;  Surtees  v.  Hubbard,  4  Esp. 
tract,  and  unless  there  is  a  promise  by  203.  In  this  case  Lord  Elknboroucjh 
the  debtor  to  pay  the  new  substituted  observed :  — "  Choses  in  action  gene- 
creditor  the  amount  for  which  he  was  rally  are  not  assignable.  Where  a 
originally  liable  to  his  own  creditor,  party  entitled  to  money  assigns  over 
there  is  no  privity  of  contract,  and  an  his  interest  to  another,  the  mere  act  of 
action  at  law  will  not  lie  by  the  trans-  assignment  does  not  entitle  the  assignee 
feree  in  his  own  name.  Williams  v.  to  maintain  an  action  for  it.  The 
Everett,  14  East,  582;  Mandeville  v.  debtor  may  refuse  his  assent;  he  may 
Welch,  5  Wheaton,  277  ;  Gibson  v.  have  an  account  against  the  assignor, 
Cooke,  20  Pick.  18.  See  Wharton  v.  and  wish  to  have  his  set-off;  but  if  there 
Walker,  4  B.  &  C.  163  ;  Scott?;.  Porch-  is  any  thing  like  an  assent  on  the  part 
er,  3  Mer.  052  ;  Wedlakc  v.  Hurley,  1  of  the  holder  of  the  money,  in  that  case 
Cro.  &  Jer.  83  ;  Baron  v.  Husband,  4  I  think  that  this,  [assumpsit  for  money 
Barn.  &  Ad.  614.  But  see  Hall  v.  Mar-  had  and  received,]  which  is  an  equitable 
ston,  17  Mass.  575.  —  And  the  creditor  action,  is  maintainable."  Beecker  v. 
must  also  consent  to  take  the  new  debtor  Beecker,  7  Johns.  103  ;  Holly  v.  Rath- 
as  his  sole  security,  and  to  extinguish  bone,  8  Johns.  149;  Norris  v.  Hall,  18 
his  claim  against  his  former  debtor.  Maine,  332 ;  Clement  v.  Clement,  8  N. 
Butterfield  v.  Hartshorn,  7  New  Hamp.  H.  472. 
345.              .      .  (a)  Bird  v.  Gammon,  3  Bing.  N.  C. 


[z)  See  Ainslie  v.  Boynton,  2  Barb.    883. 


17* 


[197] 


-191 


THE   LAW   OF   CONTRACTS. 


[book  I. 


made  to  the  maker,  it  seems  not  to  be  entirely  agreed  upon 
by  civilians  whether  such  an  order,  assented  to  and  complied 
with,  would  or  would  not  discharge  the  whole  of  the  original 
debt.  But  there  can  be  no  doubt  that  by  the  common  law  it 
would  be  a  discharge  only  pro  tanto,  unless  there  were  a  dis- 
tinct agreement  and  a  valid  promise  that  it  should  be  taken 
for  the  whole,  (b) 


{b)  Hcathcote  v.  Crookshanks,  2  T. 
R.  27  ;  Fitch  v.  Sutton,  5  East,  230 ; 
Pinnel's  case,  5  Co.  R.  117;  Cumber  v. 
Wane,  1  Strange,  426.  Sec  also  Sibree 
V.  Tripp,  15  M.  &  W.  23,  where  the 
case  of  Cumber  v.  Wane  was  much  dis- 
cussed, and  somewhat  qualified.  — Nei- 
ther will  an  order  or  draft  for  part  only 
of  a  debt  due  from  the  drawee  to  the 
drawer,  without    the    consent    of   the 

[198] 


drawee,  amount  to  an  assignment  of 
any  portion  of  the  debt  or  liability,  and 
does  not  authorize  the  institution  of  a 
suit  in  the  name  of  the  assignee  for  the 
whole  or  any  part  of  the  sum  due  from 
the  debtor.  Gibson  v.  Cooke,  20  Pick. 
15;  Mandeville  v.  Welch,  5  Wheaton, 
277  ;  Robbins  v.  Bacon,  3  Greenl.  346, 
(2d  ed.)  and  note. 


CH.    XIV.] 


ASSIGNMENT. 


192 


CHAPTER   XIV. 

NEW  PARTIES   BY   ASSIGNMENT. 

Sect.  I.  —  Of  Assignments  of  Glioses  in  Action. 

Any  right  under  a  contract,  either  express  or  implied,  which 
has  not  been  reduced  to  possession,  is  a  chose  in  action;  (c) 
and  is  so  called  because  it  can  be  enforced  against  an  adverse 
party  only  by  an  action  at  law.  At  common  law  the  trans- 
fer of  this  chose  in  action  was  entirely  forbidden.  The  rea- 
son was  this.  A  chose  in  action,  by  its  very  nature  and  defi- 
nition, is  a  right  which  cannot  be  enforced  against  a  reluctant 
party,  excepting  by  an  action,  or  suit  at  law.  And  if  this  be 
transferred,  the  only  thing  which  passes  is  a  right  to  go  to 
law ;  and  so  much  did  the  ancient  law  abhor  litigation  that 
such  transfers  were  wholly  prohibited,  {d) 


(c)  2  Bl.  Com.  396,  397;  1  Dane's 
Abr.  92.  Chases  in  action  are  not  limited, 
however,  to  rights  arising  under  con- 
tracts. "  Blackstone  seems  to  have  en- 
tertained the  opinion,  that  the  term 
chose,  or  thing  in  action,  only  included 
debts  due,  or  damages  recoverable  for 
the  breach  of  a  contract,  express  or  im- 
plied. But  this  definition  is  too  limited. 
The  term  chose  in  action  is  used  in  con- 
tradistinction to  chose  in  possession.  It 
includes  all  rights  to  personal  property 
not  in  possession  -which  may  be  enforced 
by  action ;  and  it  makes  no  dift'erence 
whether  the  owner  has  been  deprived  of 
his  property  by  the  tortious  act  of  ano- 
ther, or  by  his  breach  of  a  contract,  ex- 
pre.'^s  or  implied.  In  both  cases  the 
debt  or  damages  of  the  owner  is  a '  thing 
in  action.' "  Per  Branson,  C.  J.,  Gillet 
V.  Fairchild,  4  Denio,  80.  It  was  ac- 
cordingly held  in  that  case  that  a  re- 
ceiver of  an  insolvent  corporation,  who 
was  empowered  by  law  to  sue  for  and 
recover  "  all  the  estate,  debts,  and  things 
ill  action,"  belonging  to  the  corporation, 
might  maintain  trover  for  the  conversion 


of  the  personal  property  of  the  corpo- 
ration before  the  plaintiff  was  appointed 
receiver.  See  also  Hall  v.  Robinson,  2 
Comst.  293. 

(d)  "It  is  to  be  obseiwed,  that  by  the 
ancient  maxim  of  the  common  law,  a 
right  of  entry  or  a  chose  in  action  can- 
not be  granted  or  transferred  to  a  stran- 
ger, and  thereby  is  avoided  great  op- 
pression, injury,  and  injustice."  Co. 
Litt.  266,  a.  So  again  in  Lampet's 
case,  10  Co.  R.  48,  Lord  Coke  says:  — 
"  The  great  wisdom  and  policy  of  the 
sages  and  founders  of  our  law  have 
provided,  that  no  possibility,  right,  title, 
nor  thing  in  action,  shall  be  granted  or  as- 
signed to  strangers,  for  that  would  be  the 
occasion  of  multiplying  of  contentions 
and  suits,  of  great  oppression  of  the  peo- 
ple, and  chiefly  of  terre-tenants,  and  the 
subversion  of  the  due  and  equal  exe- 
cution of  justice."  At  what  time  this 
doctrine,  which,  it  is  said,  had  relation 
originally  only  to  landed  estates,  was 
first  adjudged  to  be  equally  applicable 
to  the  assignment  of  a  mere  peisonal 
chattel  not  in  possession,  it  is  not  easy  to 
[199] 


193 


THE   LAW   OF   CONTRACTS. 


[book  I. 


Courts  of  equity  have  for  a  long  time,  disregarded  this 
rule  ;  (e)  and  they  pernfiit  the  assignee  of  a  chose  in  action  to 
sustain  an  action  in  his  own  name.  (/) 


Such  an  assign- 


decide  ;  it  seems,  however,  to  have  been 
so  settled  at  a  very  early  period  of  our 
history,  as  the  works  of  our  oldest  text- 
writers,  and  the  reports  contain  number- 
less observations  and  cases  on  the  sub- 
ject. Chitty  &  Hulrae  on  Bills,  p.  6. 
—  But  it  is  to  be  observed  that  the  king 
was  always  an  exception  to  this  rule, 
for  he  might  always  either  grant  or  re- 
ceive a  possibility  or  chose  in  action  by 
assignment.  Breverton's  case,  Dyer, 
30,  b ;  Co.  Litt.  232,  b,  note  1.  And  it 
seems  that  in  this  country  the  same  ex- 
ception exists  in  respect  to  the  govern- 
ment of  the  United  States.  United 
States  V.  Buford,  3  Pet.  30. 

(e)  Anon.  Freem.  Ch.  Eep.  145  ; 
Wright  V.  Wright,  1  Ves.  Sen.  409; 
Warmstrey  v.  Tanlield,  1  Ch.  Eep.  29  ; 
Row  i\ Dawson,  1  Ves.  Sen.  331 ;  Pres- 
sor V.  Edmonds,  1  Y.  &  Col.  481 ;  Bige- 
low  V.  Willson,  1  Pick.  485,  493  ;  Dix, 
V.  Cobb.  4  Mass.  508,  511  ;  Haskell  v. 
Hilton,30Maine,419:  Miller u.Whittier, 
32  Maine,  203  ;  Moor  v.  Veazie,  lb.  342. 

(f)  This,  however,  is  to  be  taken 
with  some  qualification.  It  is  not  to  be 
understood  that  the  assignee  of  a  chose 
in  action  may  always  enforce  his  claim 
in  a  court  of  equity ;  but  simply  that  he 
may  proceed  in  equity  in  his  own  name, 
whenever  he  is  entitled  to  go  into  a 
court  of  equity  at  all.  It  seems  to  be 
well  settled,  however,  that  the  mere  fact 
of  one's  being  the  assignee  of  a  chose  in 
action  will  not  entitle  him  to  go  into  a 
court  of  equity  at  all.  His  remedy  is 
generally  complete  at  law  by  a  suit  in 
the  name  of  the  assignor,  and  to  that  he 
will  be  left.  It  is  only  when  the  legal 
remedy  is  in  some  manner  obstructed  or 
rendered  insufhcient  that  a  court  of 
equity  will  interpose.  The  law  was 
thus  laid  down  by  Lord  Hardwiclce  in 
Motteux  V.  The  London  Assurance  Co. 
1  Atk.  545,  547;  by  Lord  King  in  Dhege- 
toft  V.  The  London  Assurance  Co.,  Mose- 
ly,  83  ;  and  by  Sir  Lancelot  Shaclwell  in 
Hammond  v.  Messenger,  9  Sim.  327, 
332.  In  this  last  case  the  learned  Vice- 
Chancellor  said :  —  "  If  this  case  were 
stripped  of  all  special  circumstances,  it 
would  be,  simply,  a  bill  filed  by  a  plain- 
tift"  who  had  obtained  from  certain  per- 
sons to  whom  a  debt  was  due  a  right  to 

[200] 


sue  in  their  names  for  the  debt.  It  is 
quite  new  to  me  that,  in  such  a  simple 
case  as  that,  this  court  allows,  in  the 
first  instance,  a  bill  to  be  filed  against 
the  debtor,  by  the  person  who  has  be- 
come the  assignee  of  the  debt.  I  admit 
that,  if  special  circumstances  are  stated, 
and  it  is  represented  that,  notwithstand- 
ing the  right  which  the  party  has  ob- 
tained to  sue  in  the  name  of  the  creditor, 
the  creditor  will  interfere  and  prevent 
the  exercise  of  that  right,  this  court  will 
interpose  for  the  purpose  of  preventing 
that  species  of  wrong  being  done  ;  and, 
if  the  creditor  will  not  allow  the  matter 
to  be  tried  at  law  in  his  name,  this  court 
has  a  jurisdiction,  in  the  first  instance, 
to  compel  the  debtor  to  pay  the  debt  to 
the  plaintiff;  especially  in  a  case  where 
the  act  done  by  the  creditor  is  done  in 
collusion  with  the  debtor.  If  bills  of 
this  kind  were  allowable,  it  is  obvious 
that  they  would  be  pretty  frequent :  but 
I  never  remember  any  instance  of  such 
a  bill  as  this  being  filed,  unaccompanied 
by  special  circumstances."  See  also 
Keys  V.  Williams,  3  Y.  &  Col.  462,  466  ; 
and  Eose  v.  Clarke,  1  Y.  &  Col.  Ch. 
Cas.  534,  548.  The  same  doctrine  has 
been  distinctly  held  also  in  New  York ; 
Carter  v.  United  Ins.  Co.  1  Johns.  Ch. 
463  ;  Ontario  Bank  v.  Mumford,  2 
Barb.  Ch.  596.  And  in  Maryland  ; 
Cover  V.  Christie,  2  Harris  &  Johns.  67  ; 
Adair  v.  Winchester,  7  Gill  &  Johns. 
114.  And  in  Tennessee;  Smiley  r. Bell, 
Martin  &  Yerger,378.  And  in  Virginia  ; 
Moseley  v.  Boush,  4  Ean.  392.  There 
is  no  conflict  between  the  case  of  Mose- 
ly  V.  Boush  and  the  case  of  Winn  v. 
Bowles,  6  j\Iunf.  23,  an  earlier  Virginia 
case.  The  latter  case  simply  decided 
that  the  statute  of  Virginia,  authorizing 
the  assignee  of  a  chose  in  action  to  sue 
in  his  own  name,  did  not  take  from  the 
Court  of  Chancery  the  jurisdiction 
which  it  formerly  had.  There  seems  to 
have  been  suflicient  in  this  case  to  give 
a  court  of  equity  jurisdiction  consist- 
ently with  the  rule  that  we  have  laid 
dowm.  Sir.  Justice  Story,  indeed,  in 
his  Commentaries  on  Equity  Jurispru- 
dence, expresses  a  somewhat  different 
view  upon  this  subject.  After  stating 
the  law  as  laid  down  in  Hammond  v. 


en.  XIV.] 


ASSIGNMENT. 


194 


ment  is  regarded  in  equity  as  a  declaration  of  trust,  and  an 
authorization  to  the  assignee  to  reduce  the  interest  to  pos- 
session, (g-)  But  if  the  assignee  be  a  mere  nominal  holder, 
without  interest  in  the  thing  assigned,  then  the  suit  should  be 
brought  in  the  name  of  the  party  in  interest,  (h)  And  there 
are  assignments  of  choses  in  action  which  will  not  be  sus- 
tained either  in  equity  or  at  law,  as  being  against  public 
policy.  As  by  an  officer  in  the  army  or  navy,  of  his  pay,  (i)  or 
his  commission,  (j)  or  the  salaries  of  judges,  (k)  or  of  a  mere 
right  to  file  a  bill  in  equity  for  a  fraud,  (/)  or  a  right  of  action 
for  a  tort,  (m)     But  after  the  conversion    of  a  chattel,  the 


Mesengcr,  cited  above,  he  says,  §  1057 
a :  —  "  This  doctrine  is  apparently  new, 
at  least  in  the  broad  extent  in  which  it 
is  laid  down  ;  and  docs  not  seem  to  have 
been  generally  adopted  in  America. 
On  the  contrary,  the  more  general 
principle  established  in  this  country 
seems  to  be,  that,  wherever  an  assignee 
has  an  equitable  right  or  interest  in  a 
debt,  or  other  property,  (as  the  assignee 
of  a  debt  certainly  has,)  there  a  court 
of  equity  is  the  proper  forum  to  enforce 
it :  and  he  is  not  to  be  driven  to  any 
circuity  by  instituting  a  suit  at  law  in 
the  name  of  the  person  who  is  possessed 
of  the  legal  title."  He  cites  no  case, 
however,  which  appears  to  conflict  with 
Hammond  and  Messenger,  except  the 
case  of  Townsend  v.  Carpenter,  1 1  Ohio, 
21 .  That  case  does  indeed  decide  that 
the  mere  fact  of  one's  being  an  assignee 
of  a  chose  in  action  will  entitle  him  to 
enforce  his  claim  in  equity.  The  learn- 
ed judge,  however,  does  not  cite  any 
case  in  support  of  his  position,  and  he 
.appears  not  to  have  been  aware  of  the 
weight  of  authority  against  him  ;  for  he 
says  he  knows  of  no  case  except  Mose- 
ley  V.  Boush,  cited  above,  "  where  it  has 
been  held  that  a  court  of  law,  having  once 
declined  jurisdiction  of  a  particular 
subject-matter,  and  afterwards  in  an  in- 
direct manner  entertained  it,  that  a 
Court  of  Chancery,  to  which  it  appro- 
priately and  originally  belonged,  is  there- 
fore deprived  of  it.  The  case  of  the 
Ontario  Bank  v.  Mumford,  cited  above, 
which  was  decided  since  Story's  Equity 
was  published,  contains  a  thorough  dis- 
cussion of  this  subject.  The  counsel 
for  the  plaintiff  relied  upon  Story's 
Equity,  but  Clu\nccUor  Walworth,  hav- 


ing cited  with  approbation  the  case  of 
Hammond  i'.  Messenger  and  several  of 
the  other  cases  referred  to  in  this  note, 
reaffirmed  to  its  full  extent  the  doctrine 
which  they  contain.  "  As  a  general 
rule,"  says  he,  "  this  court  will  not 
entertain  a  suit  brought  by  the  assignee 
of  a  debt,  or  of  a  chose  in  action,  which 
is  a  mere  legal  demand  ;  but  will  leave 
him  to  his  remedy  at  law  by  a  suit  in 
the  name  of  the  assignor.  Where, 
however,  special  circumstances  render  it 
necessary  for  the  assignee  to  come  into 
a  court  of  equity  for  relief,  to  prevent  a 
failure  of  justice,  he  will  be  allowed  to 
bring  a  suit  here  upon  a  mere  legal  de- 
mand." Such  must  undoubtedly  be 
considered  the  true  rule  upon  the  sub- 
ject. 

{(j)  Co.  Litt.  232,  b,  note  1 ;  Morrison 
V.  Deaderick,  10  Humph.  342. 

(A)  Field  v.  Maghee,  5  Paige,  539  ; 
Kogers  v.  Traders  Insurance  Co.  6 
Paige,  583. 

(;)  Stone  v.  Lidderdale,  2  Anst.  533  ; 
McCarthy  v.  Goold,  1  Ball  &  B.  387  ; 
Davis  V.  Duke  of  Marlborough,  1 
Swanst.  74 ;  Flarty  v.  Odium,  3  T.  R. 
681  ;  Grenfell  v.  Dean  and  Canons  of 
Windsor,  2  Beav.  544. 

ij)  Collyer  v.  Fallon,  Turn.  &  Rus. 
459. 

(k)  Lord  Kenyan,  Flarty  v.  Odium,  3 
T.  R.  681.  But  it  seems  a  city  officer 
may  lawfully  make  an  assignment  of  his 
salary  yet  to  grow  due,  so  as  to  prevent 
its  attachment  upon  the  trustee  process. 
Brackett  v.  Blake  &  Tr.  7  Mete.  335. 

(I)  Prosser  v.  Edmonds,  1  Y.  &  Col. 
481  ;  Morrison  v.  Deaderick,  10  Humph. 
342. 

(m)  Gardner  v.  Adams,  12  Wend. 
[201] 


195 


THE   LAW   OF   CONTRACTS. 


[book  I. 


owner  may  sell  it  so  as  to  give  the  purchaser  a  right  to  claim 
it  of  the  wrongdoer,  (n) 

Courts  of  law  also  permit  and  protect  assignments  of  choses 
in  action,  to  a  certain  extent,  (o)  If  the  debtor  assent  to  the 
assignment,  and  promise  to  pay  the  assignee,  an  action  may 
be  brought  by  the  assignee  in  his  own  name,  (p)  but  other- 
wise he  must  bring  it  in  the  name  of  the  assignor;  (q)  and 
this  rule  applies  to  an  assignment  of  a  negotiable  bill  or  note, 


297.  "  In  general,  it  may  be  affirmed 
that  mere  personal  torts,  which  die  with 
the  party,  and  do  not  survive  to  his  per- 
sonal representative,  arc  not  capable  of 
passing  by  assignment ;  and  that  vested 
rights  ad  rem  and  in  re,  possibilities 
coupled  with  an  interest,  and  claims 
growing  out  of  and  adhering  to  pro- 
perty, may  pass  by  assignment."  Stori/, 
J.,  Comegys  v.  Vassc,l  Pet.  193,  213. 

(n)  Hall  V.  Robinson,  2  Comst.  293, 
overruling  Gardner  z'.  Adams,  so  far  as 
tlie  latter  conflicts  with  what  is  stated 
in  the  text.  It  will  be  perceived  that 
this  case  furnishes  no  exception  to  the 
rule  that  a  right  of  action  for  a  tort  can- 
not be  assigned.  It  merely  decides  tliat 
the  owner  of  a  chattel  may  sell  it  and 
convey  a  good  title  to  it,  notwithstand- 
ing it  has  been  wrongfully  converted, 
and  then  the  vendee  may  demand  it  in 
his  own  right ;  and,  upon  a  refusal  to 
deliver  it,  bring  his  action,  not  for  the 
conversion  done  to  the  vendor,  but  for 
the  conversion  done  to  himself  by  such 
refusal. 

(o)  Buller,  J.,  Master  v.  Miller,  4  T. 
R.  320,  340  :  —  "  It  is  true  that  formerly 
the  courts  of  law  did  not  take  notice  of 
an  equity  or  trust ;  for  trusts  are  within 
the  original  jurisdiction  of  a  court  of 
equity ;  but  of  late  years  it  has  been 
found  productive  of  great  expense  to 
send  the  parties  to  the  other  side  of  the 
Hall ;  wherever  this  court  have  seen 
that  the  justice  of  the  case  has  been 
clearly  with  the  plaintiff,  they  have  not 
turned  him  round  upon  this  objection. 
Then  if  this  court  will  take  notice  of  a 
trust,  why  should  they  not  of  an  equity. 
It  is  certainly  true  that  a  cliose  in  action 
cannot  strictly  be  assigned ;  but  this 
court  will  take  notice  of  a  trust,  and 
consider  who  is  beneficially  interested." 
Ashhurst,  J.,  Winch  v.  Keelev,  1  T.  R. 
619;  Dix  v.  Cobb,  4  Mass.  508;  Welch 
v.  Mandeville,  1  Wheat.  233 ;  Legh  v. 

[202] 


Legh,  1  B.  &  P.  447;  Eastman  v. 
Wright,  6  Pick.  316,  322;  Owings  v. 
Low,  5  Gill  &,Iohns.  134,  145;  Hickey 
V.  Burt,  7  Taunt.  48  ;  Graham  v.  Gracie. 
13  Q.  B.  548. 

(p)  Crocker  v.  Whitney,  10  Mass. 
316;  Mowry  v.  Todd,  12  Mass.  281; 
Barrett  r.  Union  M.  F.  Ins.  Co.  7  Cush. 
175;  Currier  w.  Hodgdon,  3  N.  H.  82; 
Morse  v.  Bellows,  7  N.  H.  549,  565. 
Moar  V.  Wright,  1  Verm.  57  ;  Bucklin  v. 
Ward,  7  Verm.  195 ;  Hodges  i'.  Eastman, 
12  Verm.  358 ;  Stiles  v.  Farrar,  18  Verm. 
444;  Smith  v.  Berry,  18  Maine,  122; 
Warren  v.  Wheeler,  21  Maine,  484; 
Barger  v.  Collins,  7  Harr.  &  Johns.  213, 
219;  Clarke  v.  Thompson,  2  Rhode  I. 
146.  Such  seems  to  be  the  general  rul- 
ing on  this  subject.  But  such  a  trans- 
action would  seem  to  fall  within  the 
law  of  novation :  and  the  question  would 
be  as  to  the  consideration  on  which  the 
promise  of  the  original  debtor  to  the  as- 
signee is  founded.  Probably  it  would 
be  held  that  if  A.  holds  the  note  of  B., 
payable  to  A.,  and  assigns  this  fur  value 
to  C,  and  B.  assents  and  promises  to 
pay  C.,  B.  is  by  such  transfer  released 
from  his  promise  to  A.,  and  this  is  a 
sufficient  consideration  to  sustain  his 
promise  to  C.  See  Ford  v.  Adams,  2 
Barb.  Sup.  Ct.  349.  In  Tibbits  v. 
George,  5  Ad.  &  El.  115,  Lord  Denman 
said  :  —  "  None  of  the  authorities  which 
have  been  cited  show  that  it  is  necessary 
that  the  assignment  should  be  in  writing 
in  order  to  pass  an  equitable  interest, 
although  in  very  many  of  the  cases  there 
was  a  writing;  and  as  to  express  assent 
it  is  undoubtedly  held  that,  in  order  to 
give  an  action  at  laiv,  the  debtor  must 
consent  to  the  agreed  transfer  of  the 
del)t,  and  that  there  must  be  some  con- 
sideration for  his  promise  to  pay  it  to  the 
transferee." 

(q)  Jessel  V.  Williamsburgh  Ins.  Co. 
3  Hill,  88 ;  Usher  v.  De  Wolfe,  13  Mass. 


en.   XIV.]  PAKTNERSHIP.  *196 

unless  it  be  indorsed  by  the  assignor,  {qq)  And  the  action 
brought  in  the  name  of  the  assignor  lor  the  benefit  of  the 
assignee  is  open  to  all  equitable  defences ;  but  only  to  those 
which  are  equitable.  That  is,  the  debtor  may  make  all  Me- 
fences  which  he  might  have  made  if  the  suit  were  for  the 
benefit  of  the  assignor  as  well  as  in  his  name,  provided  these 
defences  rest  upon  honest  transactions  which  took  place  be- 
tween the  debtor  and  the  assignor  before  the  assignment,  or 
after  the  assignment  and  before  the  debtor  had  notice  or 
knowledge  of  it.  (r)  And  the  death  of  the  assignor  will  not 
defeat  the  assignment,  but  the  assignee  may  bring  the  action 
in  the  name  of  the  executor  or  administrator  of  the  de- 
ceased. (5)  But  if  the  assignment  be  in  good  faith  and  for 
valuable  consideration,  although  the  action  be  brought  in  the 
name  of  the  assignor,  neither  his  release  nor  his  bankruptcy 
will  defeat  it.  [t)  A  debt  due  for  goods  sold  and  delivered, 
and  resting  for  evidence  on  a  book  account,  may  be  so  as- 
signed, (ii)  or  an  unliquidated  balance  of  accounts,  {v)  or  a 
contingent  debt,  [w)  or  a  judgment,  [x)  or  a  bond ;  but  an 
action  on  a  bond  must  be  in  the  name  of  the  obligee,  although 
it  be  made  payable  expressly  to  "  assigns."  [y)  And  it  has 
been  held  that  a  grant  of  a  franchise  to  a  town,  as  the  right 
of  fishery,  may  be  the  subject  of  a  legal  assignment  or  re- 
lease, and  the  assignee  or  releasee  may  maintain  an  action 
respecting  it  in  his  own  name,  (c)     But  a  servant  bound  by 


290;   Coolidgc  v.  Euggles,   15  Mass.  (s)  Dawes  r.  Boylston,  9  Mass.  337, 

387;  Skinner  v.  Somes,  14  Mass.  107.  346;  Cutts   v.  Perkins,  12  Mass.   206. 

See  also  supra,  n.  (0.)  210. 

{qq)  Freeman  r.  Perry, 22  Conn. 617;  (i)  Dix  v.  Cobb,  4  Mass.  508,  511  ; 

See  also  Hedges  v.  Sealv,  9  Barb.  214.  Brown  v.  Maine  Bank,  11  Mass.  153: 

(r)  Mangles  r.  Dixon,  IS  E.  L.  &  E.  Webb   v.   Steele,    13  N.  H.  230,  236: 
82 ;  Bartlctt   v.  Pearson,  29  Maine,  9,  Duncklee  v.  Greenfield  Steam  Mill  Co. 
15;  Guerrv  v.  Perryman,  6  Geo.  119;  3  Foster,  245;  Anderson  v.  Miller,  7  S- 
Wood  V.  Perry,  1  Barb.  114,  131 ;  Com-  &  M.  586  ;  Parker  v.  Kelly,  10  S.  &  M. 
mercial  Bank  r.  Colt,   15  Barb.  506;  184;  AViuch  v.  Keely,  1  T.'R.  619:  Blin 
Sanborn  v.  Little,  3  N.  H,  539 ;  Norton  v.  Pierce,  20  Verm.  25  ;  Blake  v.  Buch- 
r.  Eose,  2  Wasb.  233  :  MuiTay  v.  Lyl-  anan,  22  Verm.  548 ;  Parsons  v.  Wood- 
burn,  2  Jolins.  Ch.  441  ;  Hacket  v.  JMar-  ward,  2  NeM'  Jer.  196. 
tin,  8  Grccnl.  77  ;   Greene  v.  Darling,  5  (;/)  Dix  v.  Cobb.  4  Mass.  508. 
Mason,  201,  214 :  Comstock  v.  Farnum.  (r)  Crocker  v.  Wbitnev,  10  Mass.  316. 
2  Mass.  90;  Wood  r.  Partridge,  11  Mass.  {ic)   Cutts  v.  Perkins,"  12  Mass.  206. 
488.   McJilton  r.  Love,  13  111.486.    See  (x)  Brown  v.  Maine  Bank,  11  Mass. 
Patterson  v.  Atherton,  3  McLean,  147,  153;  Dimn  v.  SncU,  15  Mass.  481. 
in  which  a  diftcrent  doctrine  seems  to  (?/)  Skinner  v.  Somes,  14  Mass.  107. 
be  held,  but  on  very  insufHcient  grounds.  (z)  Watertown  v.  White,  13  Mass.  477. 

[203] 


197*  THE   LAW   OF   CONTRACTS.  [BOOK   I. 

indenture  cannot  be  transferred  or  assigned  by  the  master  to 
another,  because  the  master  has  only  a  personal  trust,  (a)  The 
right  of  a  mortgagor  to  redeem  his  equity  of  redemption  after 
the  same  has  been  taken  and  sold  on  execution  is  assignable 
*both  at  law  and  in  equity,  (b)  The  respective  interests  of  a 
crew  of  a  privateer  in  a  prize  cannot  be  assigned,  because,  by 
the  statute  of  the  United  States,  they  have  no  right  in  or 
control  over  the  property  until  it  has  been  libelled,  condemned, 
and  sold  by  the  marshal,  and  the  proceeds,  after  all  legal  de- 
ductions, paid  over  to  the  prize  agents,  (c) 


SECTION  II. 
OF   THE   MANNER   OF   ASSIGNMENT. 

It  was  once  held  that  the  assignment  of  an  instrument 
must  be  of  as  high  a  nature  as  the  instrument  assigned,  (d) 
But  this  rule  has  been  very  much  relaxed,  if  not  overthrown ; 
and  indeed  it  has  been  determined  that  tbe  equitable  interest 
in  a  chose  in  action  may  be  assigned  for  a  valuable  consider- 
ation by  a  mere  delivery  of  the  evidence  of  the  contract ;  and 
that  it  is  not  necessary  that  the  assignment  should  be  in  writ- 
ino-.  (e)  So  the  equitable  interest  in  a  judgment  may  be 
assigned  by  a  delivery  of  the  execution.  (/)  But  a  mere 
agreement  to  assign  without  any  delivery,  actual  or  symbol- 
Co}  Hall  V.  Gardner,  1  Mass.  172;  which  show  that  debts  and  even  deeds 
Davis  V.  Coburn,  8  Mass.  299;  Clement  may  be  assigned  by  parol;  and  we  are 
V.  Clement,  8  N.  H.  472.  Graham  v.  satisfied  that  there  is  no  sensible  ground 
Kinder,  11  B.  Mon.  60.  So  the  powers  upon  which  a  writing  shall  be  held  ne- 
and  duties  of  the  testamentary  guardian  cessary  to  prove  an  assignment  of  a 
of  an  intant  are  a  personal  trust,  which  contract,  which  assignment  has  been 
cannot  be  assigned.  T3alchw.  Smith,  12  executed  by  delivery,  any  more  tlian  in 
N.  H.  437.  the  assignment  of  a  personal  chattel." 

(b)  Bigelow  i;.  Willson,  1  Pick.  485.       Per  Parker,  C.  J.,  Jones  v.  Witter,  13 

(c)  Usher  v.  DeWolf,  13  Mass.  290.         Mass.  304.     See  also  Dunn  v.  Suell,  15 

(d)  Perkins  v.  Parker,  1  Mass.  117;  Mass.  481  ;  Vose  v.  Handy,  2  Greenl. 
Wood  V.  Partridge,  11  Mass.  488.  In  322,  334  ;  Eobbins  v.  Bacon,  3  Greenl. 
this  case,  Parker,  C.  J.,  said:  — "It  is  346;  Porter  v.  Ballard,  26  Maine,  448; 
uniformly  holden,  that  an  assignment  of  Prescott  v.  Hull,  17  Johns.  284,  292; 
an  instrument  under  seal  must  be  by  Ford  u.  Stuart.  19  Johns.  342;  Tibbits 
deed ;  in  other  words,  that  the  instru-  v.  George,  5  Ad.  &  El.  107 ;  Heath  v. 
ment  of  transfer  must  be  of  as  high  a     Hall,  4  Taunt.  326. 

nature  as  the  instrument  transferred."  .  ,   j^^^^  ^,  gj^^jj  j  5  jj^^^g  ^gj^ 

(e)  "  There  are  cases  ui  the  old  books        '"'  ' 

[204] 


CH.   XIV.]  ASSIGNMENT.  *198 

ical  of  the  writing  evidencing  the  debt ;  or  an  indorsement 
upon  the  instrument  directing  the  debtor  to  pay  a  portion  of 
the  amount  due,  to  a  third  person,  such  indorsement  being 
notified  to  the  debtor,  but  the  writing  remaining  in  the  hands 
of  the  creditor,  does  not  constitute  a  sufficient  assignment,  [ff) 


SECTION  III. 

OF  THE  EQUITABLE  DEFENCES. 

We  have  seen  that  an  assignee  of  a  chose  in  action  takes 
it  subject  to  all  the  equities  of  defence  which  exist  between 
*the  assignor  and  the  debtor,  [g-)  The  assignee  does  not  take 
a  legal  interest,  nor  hold  what  he  takes  by  a  legal  title ;  but 
he  holds  by  an  equitable  title  an  equitable  interest;  and  this 
interest  courts  of  law  will  protect  only  so  far  as  the  equities 
of  the  case  permit ;  and  any  subsequent  assignee  is  subject 
to  the  same  equities  as  his  assignor,  [li)  But  these  equities 
must  be  those  subsisting  at  the  time  when  the  debtor  receives 
notice  of  the  assignment;  for  the  assignment,  with  notice, 
imposes  upon  the  debtor  an  equitable  and  moral  obligation 
to  pay  the  money  to  the  assignee,  {i)  But  the  assignee 
ought,  especially  if  required,  to  exhibit  the  assignment,  or 
satisfactory  evidence  of  it,  to  the  debtor,  to  make  his  right 
certain  ;  although  it  is  enough  if  the  debtor  be  in  good  faith 
informed  of  it,  and  has  no  reason  to  doubt  it.  (j)  And  if 
after  the  assignment,  and  previous  to  such  a  notice  of  it,  the 
debtor  pays  the  debt  to  the  assignor,  he  shall  be  discharged, 
because  he  shall  not  suffer  by  the  negligence  or  fault  of  the 
assignee,  [k)  And  if  after  assignment  and  notice  the  debtor 
pays  the  debt  to  the  assignor,  and  is  discharged  by  him,  and 

{ff)  Whittle  V.   Skinner,  23   Verm.  v.  Browder,  11  B.  Mon.  212.     See  also 

531  ;  Palmer  v.  Merrill,  6  Cush.  282.  supra,  n.  r,  p.  *196. 

(^)  Sccs!/M-a.  n.  r,  p.  *196.  ^   (i)    Davenport    v.    Woodbridge,    8 

(}\wT-\y       rr         11     ,oAr        ^r. .  Greenl.  17;  Bean  i>.  Simpson,  16  Maine, 

^ti!lf  n  r^''''J#'V^^^i^''L"°^'  49;   J»'>"^o"   ^-   Bloodgood    1    Johns. 

Stocks  V.  Dobson,  19  E.  L.  &  E.  96.  Cas.  51  ;   Anderson  2;.  Van  Alen,  12 

(i)  Crocker  v.  Whitnev,  10  Mass.  316,  Johns.  343. 

319;   Mowry  v.  Todd, 'l  2   Mass.  281;  (/c)  Jones   v.  Witter,  13  Mass.  304- 

Jones  V.  Witter,  13  Mass.  304  ;  Small  Stocks  v.  Dobson,  19  E.  L.  &  E.  96. 

VOL.  I.                                  18  [205] 


199*  THE   LAW    OF   CONTRACTS.  [bOOK  I. 

the  assignee  recovers  judgment  against  the  assignor  for  the 
consideration  paid  him  for  the  assignment,  the  assignee  may 
still  recover  of  the  debtor  the  debt  assigned,  deducting  what  he 
actually  recovers  from  the  assignor.  (/)  Nor  can  the  debtor 
set  off  any  demand  against  the  assignor  which  accrues  to  him 
after  such  assignment  and  notice,  (in)  but  he  may  any  which 
existed  at  or  before  the  assignment  and  notice,  (w) 


SECTION  IV. 

COVENANTS    ANNEXED    TO    LAND. 

A  covenant  affecting  real  property,  made  with  a  covenantee 
who  possesses  a  transferable  interest  therein,  is  annexed  to 
*  the  estate,  and  is  transferable  at  law,  passing  with  the  in- 
terest in  the  realty  to  which  it  is  annexed ;  (o)  and  it  is  often 
called  a  "  covenant  running  with  the  land."  If  such  cove- 
nants be  made  by  the  owner  of  land  who  conveys  his  entire 
interest  to  the  covenantee,  being  annexed  to  the  estate,  the 
assignee  of  that  estate  may  bring  his  action  on  the  covenants 
in  his  own  name,  [p)  But  the  assignee  must  take  the  estate 
which  the  covenantee  has  in  the  land,  and  no  other;  nor  can 
he  sue  upon  the  covenants  if  he  takes  a  different  estate,  [q) 

(l)  Jones  V.  Witter,  13  Mass.  304.  the  common  law.    Middlemorc  v.  Good- 

(m)  Goodwin  r.  Cunningham,  12  Mass.  ale,  1  Eol.  Abr.  521.     See  also  Camp- 

193  ;   Greene  v.  Hatch,  12  Mass.  195  ;  bell  v.  Lewis,  3  B.  &  Aid.  392. 
Jenkins    v.    Brewster,  14    Mass.    291  ;         {q)  He  is  not  in  fact  an  assignee  of 

Philips  V.  Bank  of  Lewistown,  18  Penn.  tlie  covenantee  unless  he  takes  the  same 

394  ;  Conant  v.  Seneca  County  Bank,  1  estate  :  for  an  assignment,  by  the  very 

Ohio  State  R.  298.  definition  of  the  word,  is  "a  transfer,  or 

{n)  Ainslie  v.  Boynton,  2  Barb.  Sup.  making  over  to  another,  of  ones  iclwle 

Ct.  258 ;  Sanborn  v.  Little,  3  N.  H.  539.  interest,  whatever  that  interest  may  be : 

(o)  "  A  covenant  is  real  when  it  doth  and  an  assignment  for  life  or  years  dif- 

run  in  the  realty  so  with  the  land  that  fers  from  a  lease  only  in  this,  that  by  a 

he  that  hath  the  one,  hath  or  is   sub-  lease  one  grants  an  interest  less  than 

ject  to  the  other,  and  so  a  warranty  is  his  own,  reserving  to  himself  a  rever- 

called  a  real  covenant."     Shep.  Touch,  sion  ;  in  assignments  he  parts  with  his 

161.  whole  property,  and  the  assignee  con- 

(/>)  Thus  if  A.,  seized  of  land  in  fee,  sequently  stands   in   the   place   of  the 

conveys  it  by  deed  to  B.,  and  covenants  assignor."     1  Steph.  Com.  485.     There 

with  13.,  his  heirs,  and  assigns,  for  fur-  is  a  difference,  however,  in  this  respect, 

ther  assurance,  and  then  B.  conveys  to  between   the  estate  or  interest  in   the 

C.,  and  C.  to  D.,  I),  may  require  A.  to  land  and  the  land  itself;  for  there  may 

make  farther  assurance  to  him  accord-  be  an  assignment  of  a  part  of  the  land, 

in"-  to  the  covenant,  and  on  his  refusal  and  tlie  assignee  may  have  his  action, 

may  maintain  an  action  against  him  by  This  distinction  is  taken  by  Lord  Coke. 

[206] 


CH.   XIV.] 


ASSIGNMENT. 


*200 


But  it  is  said  that  the  assignee  cannot  sue  upon  the  cove- 
nants unless  the  estate  passes  to  him ;  and  therefore  cannot 
upon  the  covenants  that  the  grantor  is  lawfully  seized  of  the 
land,  and  has  a  good  right  to  convey;  for  if  these  be  broken 
no  estate  passes  to  the  assignee,  and  being  broken  before  the 
assignment,  they  have  become  personal  choses  in  action,  and 
so. not  assignable,  (r) 

*The  right  to  sue  for  existing  breaches  does  not  pass  to  the 
assignee, — being  mere  personal  choses  in  action,  (rr) — unless 
they  be  continuing  breaches.  As  if  there  be  a  covenant  to 
repair,  which  is  broken,  and  the  need  of  repair  remains,  and 
the  assignee  takes  the  property  in  that  condition,  he  may  sue 
on  the  covenant,  (s)     But  if  there  be  arrearages  of  rent,  the 


"  It  is  to  be  observed,"  says  he,  "  that 
an  assignee  of  part  of  the  land  shall 
vouch  as  assignee.  As  if  a  man  make 
a  feoffment  in  fee  of  two  acres  to  one, 
with  warranty  to  him,  his  heirs,  and  as- 
signs, if  he  make  a  feoffment  of  one 
acre,  that  feoffee  shall  vouch  as  assignee ; 
for  there  is  a  diversity  between  the  whole 
estate  in  part,  and  part  of  the  estate  in  the 
ivhole^  or  of  any  part.  As  if  a  man  hath 
a  warranty  to  him,  his  heirs,  and  as- 
signs, and  he  make  a  lease  for  life,  or  a 
gift  in  tail,  the  lessee  or  donee  shall 
not  vouch  as  assignee,  because  he  hath 
not  the  estate  in  fee-simple  whereunto 
the  warranty  is  annexed."  Co.  Litt. 
385,  a.  See  also  Holford  v.  Hatch, 
Doug.  183  ;  Palmer  v.  Edwards,  Doug. 
187,  note ;  Van  Rensselaer  v.  Gallup, 
5  Denio,  454 ;  Astor  v.  Miller,  2  Paige, 
68,  78 ;  Van  Home  v.  Grain,  1  Paige, 
455. 

(r)  This  is  the  established  doctrine  in 
this  country,  and  it  would  seem  to  be  in 
accordance  wiih  the  older  authorities  in 
England.  Shep.  Touch.  170  ;  Grecnby 
r.  Wilcox,  2  Johns.  1  ;  Mitchell  u.  War- 
ner, 5  Gonn.  497  ;  Marston  v.  Hobbs,  2 
Mass.  439  ;  Ross  v.  Turner,  2  English, 
[Arkansas,]  132 ;  Fowler  v.  Poling,  2 
Barb.  Sup.  Gt.  300;  Thaver  v.  Cle- 
mcnce,  22  Pick.  490.  Per  'Shaw,  G.  J. 
Chancellor  Kent  says  :  —  '•  The  cove- 
nants of  seizin,  and  of  a  right  to  convey, 
and  that  the  land  is  free  from  incum- 
brances, are  personal  covenants,  not 
running  with  the  land,  or  passing  to  the 
assignee ;  for,  if  not  true,  there  is  a 
breach  of  them  as  soon  as  the  deed  is 


executed,  and  tjjey  become  choses  in 
action,  which  are  not  technically  assign- 
able. But  the  covenant  of  warranty, 
and  the  covenant  for  quiet  enjoyment, 
are  prospective,  and  an  actual  ouster  or 
eviction^j  is  necessary  to  constitute  a 
breach  of  them.  They  are,  therefore  in 
the  nature  of  real  covenants,  and  they 
run  with  the  land  conveyed,  and  de- 
scend to  heirs,  and  vest  in  assignees  or 
the  purchasei-.  The  distinction  taken 
in  the  American  cases  is  supported  by 
the  general  current  of  English  author- 
ities, which  assume  the  principle  that 
covenant  does  not  lie  by  an  assignee  for 
a  breach  done  before  his  time.  On  the 
other  hand,  it  was  decided  by  the  K.  B., 
in  Kingdon  v.  Nottle,  1  M.  &  S.  355,  4 
lb.  53.  that  a  covenant  of  seizin  did  run 
with  the  land,  and  the  assignee  might 
sue  on  the  ground  that  want  of  seizin 
is  a  continual  breach.  The  reason  as- 
signed for  this  last  decision  is  too  re- 
fined to  be  sound.  The  breach  is  single, 
entire,  and  perfect  in  the  first  instance." 
4  Comm.  471.  The  case  of  Kingdom;. 
Nottle  was  severely  criticized  and  con- 
demned by  the  Supreme  Court  of  Con- 
necticut, in  Mitchell  v.  Warner,  5  Conn. 
497,  and  it  cannot  be  considered  as  law 
in  this  country. 

(rr)  St.  Saviours  Churchwardens  v. 
Smith,  3  Burrows,  1271 ;  Tillotson  v. 
Boyd,  4  Sandf.  516. 

(s)  IMascal's  Case,  Moore,  242,  1 
Leon.  62 ;  Vivian  v.  Campion,  1  Salk. 
141,  Lord  Raym.  1125  ;  Sprague  v.  Ba- 
ker, 17  Mass.  586. 

[207] 


201*  THE   LAW   OF   CONTRACTS.  [BOOK  I. 

breaches  of  the  covenant  to  pay  are  each  entire,  giving  a  dis- 
tinct right  of  action,  and  on  the  death  of  the  landlord  these 
arrearages  go  to  the  personal  representative  and  not  to  the 
heir,  (t) 

Covenants  between  landlord  and  tenant,  lessee  and  rever- 
sioner, run  with  the  land.  If  one  who  owns  in  fee  conveys 
to  another  a  less  estate,  such  as  a  term  of  years,  and  enters 
into  covenants  with  the  grantee,  which  relate  to  the  use  and 
value  of  the  property  granted,  the  right  of  action  for  a  breach 
of  these  covenants  which  the  grantee  has  passes  to  his  as- 
signee, so  long  as  this  less  estate  continues,  (u)  Such  are 
covenants  to  repair,  to  grant  estovers  for  repair  or  for  fire- 
wood, to  keep  watercourses  in  good  order,  (v)  or  supply  with 
water  ;(ty)  also  covenants  for  renewal,  {x)  for  quiet  enjoy- 
*  ment,  {y)  and  the  usual  warranties  for  quiet  possession,  (z) 
But  if  one  having  no  estate  in  the  land  grants  with  covenants 
of  warranty,  as  no  estate  passes,  and  nothing  except  by  es- 
toppel, the  assignee  cannot  sue  on  these  covenants,  for  a 
lessee  by  estoppel  cannot  pass  any  thing  over,  (a) 

{t)  Anon.  Skin.  367 ;  Midgley  v.  Love-  (x)  Roe  v.  Hayley,  12  East,  464. 

lace,  Carth.  289,  12  Mod.  46.  (y)  Noke  v.  Awder,  Cro.  Eliz.  436. 

(m)  Spencer's  Case,  5  Co.  R.  17,  b.  (z)  Campbell  v.  Lewis,  3  B.  &  Aid. 

(v)  Holmes  v.  Bucklev,  Prec.  Ch.  39,  392. 

1  Eq.  Ca.  Abr.  27,  pi.  4!"  (a)  Noke  v.  Awder,  Cro.  Eliz.  436  ; 

{w)  Jourdain  v.  Wilson,  4  B.  &  Aid.  Whitten  v.  Peacock,   2  Bing.  N.    C. 

266.  411. 
[208] 


CH.  XV.]  INDORSEMENT.  202 


CHAPTER  XV. 

NEW  PARTIES    BY  INDORSEMENT. 

Sect.  I.  —  Of  Negotiable  Bills  and  Notes. 

By  the  ancient  rules  of  law  we  have  seen  that  the  transfer 
of  simple  contracts  was  entirely  forbidden.  It  is  usually  ex- 
pressed by  the  phrase,  that  a  chose  in  action  is  not  assign- 
able. But  bills  of  exchange  and  promissory  notes,  made 
payable  to  order,  are  called  negotiable  paper ;  and  they  may 
be  transferred  by  indorsement,  and  the  holder  can  sue  in  his 
own  name,  and  the  equitable  defences  which  might  have  ex- 
isted between  the  promisor  and  the  original  promisee  are 
cut  off. 

It  is  generally  said  that  the  law  of  bills  and  notes  is  excep- 
tional; that  they  are  choses  in  action,  which,  by  the  policy  of 
the  law  merchant,  and  to  satisfy  the  necessities  of  trade  and 
business,  are  permitted  to  be  assigned  as  other  choses  in 
action  cannot  be.  But  the  law  of  negotiable  paper  may  be 
considered  as  resting  on  other  grounds.  If  A.  owes  B.  one 
hundred  dollars,  and  gives  him  a  promissory  note  wherein  he 
promises  to  pay  that  sum  to  him,  (without  any  words  ex- 
tending the  promise  to  another,)  this  note  is  not  negotiable ; 
and  if  it  be  assigned  it  is  so  under  the  general  rule  of  law, 
and  is  subject  in  the  hands  of  the  assignee  to  all  equitable 
defences.  But  if  A.  in  his  note  promises  to  pay  B.  or  his 
order,  then  the  original  promise  is  in  the  alternative,  and  it  is 
this  which  makes  the  note  negotiable.  The  promise  is  to 
pay  either  B.  or  some  one  else  to  whom  B.  shall  direct  the 
payment  to  be  made.  And  when  B.  orders  the  payment  to 
be  made  to  C,  then  C.  may  demand  it  under  the  original 
promise.  He  may  say  that  the  promise  was  made  to  B.,  but 
it  was  a  promise  to  pay  C  as  soon  as  he  should  come  within 
the  condition  ;  that  is,  as  soon  as  he  should  become  the  payee 
18*  [209] 


203*  THE   LAW   OF   CONTRACTS.  [BOOK  I. 

by  order  of  *  B.  And  then  the  law  merchant  extends  this 
somewhat,  by  saying  that  the  original  promise  was  in  fact  to 
pay  either  to  B.,  or  to  C.  if  B.  shall  order  payment  made  to 
him,  or  to  any  person  to  whom  C.  shall  order  payment  made, 
after  B.  has  ordered  the  payment  made  to  C.  For  B.  has  the 
right  of  not  merely  ordering  payment  to  be  made  to  C,  but 
to  C.  or  his  order ;  and  C.  has  then  the  same  right,  and  by 
the  continued  exercise  of  this  riglit  the  transfer  may  be  made 
to  any  number  of  assignees  successively,  and  the  last  party 
to  whom  the  note  is  thus  transferred,  or  the  final  holder, 
becomes  the  person  to  whom  A.  promised  B.  to  pay  the 
money,  and  such  holder  may  sue  in  his  own  name  upon  this 
promise. 

We  may  find  the  reasons  of  the  law  of  negotiable  bills  and 
notes  in  their  origin  and  purpose.  By  interchange  of  pro- 
perty, men  supply  each  other's  wants  and  their  own  at  the 
same  time.  In  the  beginning  of  society  this  could  be  done 
only  by  actual  barter,  as  it  is  now  among  the  rudest  savages. 
But  very  early  money  was  invented  as  the  representative  of 
all  property,  and  as  therefore  greatly  facilitating  the  exchange 
of  all  property,  and  as  measuring  its  convertible  value.  The 
utility  of  this  means  enlarged,  as  the  wants  of  commerce, 
which  grew  with  civilization,  were  developed.  But,  at  length, 
more  was  needed  ;  it  became  expedient  to  take  a  farther  step ; 
and  negotiable  paper,  first  bills  of  exchange  and  then  promis- 
sory notes,  were  introduced  into  mercantile  use,  as  the  repre- 
sentative of  the  representative  of  property,  —  that  is,  as  the 
representative  of  money.  It  was  possible  to  make  exchanges 
of  large  quantities  of  bulky  articles,  by  the  use  of  money, 
without  much  inconvenience ;  and  it  was  possible  for  him 
who  wished  to  part  with  what  he  had,  to  acquire  in  its  stead 
by  selling  it  for  money,  an  article  in  which  the  value  of  all 
that  he  parted  with  was  securely  vested,  until  he  had  such 
opportunity  as  he  might  wish  to  place  this  value  in  other 
property,  which  he  did  by  buying.  But  still  coin  was  itself 
a  substantial  article,  not  easily  moved  to  great  distances  in 
large  quantities  ;  and  while  it  adequately  represented  all 
property,  it  failed  to  represent  credit.  And  this  new  inven- 
tion was  made,  and  negotiable  paper  introduced,  to  extend 
[210] 


CH.  XV.]  INDORSEMENT.  *204 

this  representation  another  degree.  It  does  not  represent 
property  directly,  but  *  money.  And  as  in  one  form  it  repre- 
sents the  money  into  which  it  is  convertible  at  the  pleasure 
of  the  holder,  so  in  another  form  it  represents  a  future  pay- 
ment of  money,  and  then  it  represents  credit.  And  as  names 
in  any  number  may  be  written  on  one  instrument,  that  in- 
strument represents  and  embodies  the  credit  of  one  man  or 
the  aggregated  credit  of  many.  Thus,  by  this  invention, 
vast  amounts  of  value  may  change  ownership  at  any  dis- 
tance, and  be  transmitted  as  easily  as  a  single  coin  could  be 
sent.  And  by  the  same  invention,  while  property  is  used  in 
commercial  intercourse,  the  credit  which  springs  from  and  is 
due  to  the  possession  of  that  property  may  also  be  used  at 
the  same  time,  and  in  the  same  way.  And  all  this  is  possi- 
ble because  negotiable  paper  is  the  adequate  representative 
of  money,  and  of  actual  credit,  in  the  transaction  of  busi- 
ness. And  it  is  possible  therefore  only  while  this  paper  is 
such  representative,  and  no  longer ;  and  the  whole  system  of 
the  law  of  negotiable  paper  has  for  its  object  to  make  this 
paper  in  fact  such  representative,  and  to  secure  its  prompt 
and  available  convertibility,  and  to  provide  for  the  safety  of 
those  who  use  this  implement,  either  by  making  it  or  receiv- 
ing it,  in  good  faith. 

By  the  practice  of  merchants,  the  transfer  of  negotiable 
paper  is  made  by  indorsements.  The  payee  writes  his 
name  {b)   on  the  back  of  the  bill  or  note,  and  delivers  it  to 

(b)  There    can   be    no   indorsement  bill  is  indorsed  by  the  payee  in  blank,  a 

without  a  signing  of  the  name.     Vin-  power  is  given  to  the  indorsee  of  spe- 

cent  I'.  Horlock,  1  Camp.  442.     In  this  cially  appointing    the    payment  to  be 

case  A.,  the  drawer  and  payee  of  a  bill  made  to   a   particular  individual,  and 

of  exchange,  indorsed  the  ijill  in  blank  what  he  does  in  the  exercise   of  this 

to  B.,  who  wrote  over  A.'s  signature,  power  is  only  expressio  eoritm,  quce  tacite 

"pay  the  contents  to  C,"  and  then  de-  insiint.     This  is  a  sufficient  indorsement 

livered  it  to  C.     //eW,  that  B.  was  not  to  the  plaintiffs,  hnt  not  hij  the  defendants." 

liable  to  C.  as  an  indorser  of  the  bill.  So  BuUer,  J.,  in  Fenn  v.  Harrison,  3  T. 

Jjord  Ellenborougk  said:  —  '"I  am  clearly  E.  761,  says  :  —  "In  the  case  of  a  bill 

of  opinion  that  this  is  not  an  indorse-  of  exchange,  we  know  precisely  what 

ment  by  the  defendant.   For  such  a  pur-  remedy  the  holder  has,  if  the  bill  be  not 

pose  the  name  of  the  party  must  appear  paid  ;  his  security  appears  wholly  on  the 

written  with  intent  to  indorse.     Wc  see  face  of  the  bill  itself,  —  the  acceptor,  the 

these  words,  "  Pay  the  contents  to  such  drawer,  and  the  indorsers,  are  all  liable 

a  one,"  written  over  a  blank  indorsement  in  their  turns  ;  but  they  are  only  liable 

every  day,  without  any  thouglit  of  con-  because  they  have  written  their  names  on  the 

trading  an  obligation ;  and  no  obliga-  bill." 
tion  is   thereby  contracted.      When   a 

[211] 


205*  -  20G*  THE   LAW   OF   CONTRACTS.  [BOOK  I. 

the  purchaser,  (bh)  and  is  then  called  an  indorser.  The  pur- 
chaser of  the  note  may  then  write  over  *this  indorsement  an 
order  to  pay  the  contents  of  the  note  to  him  or  to  his  order, 
if  the  payee  has  not  already  written  this.  The  purchaser 
thus  becomes  an  indorsee.  When  the  name  only  is  written 
it  is  called  an  indorsement  in  blank,  and  the  holder  may 
transfer  it  by  delivery,  and  it  may  thus  pass  through  many 
hands,  the  final  holder  who  demands  payment  writing  over 
the  name  indorsed  an  order  to  pay  to  him.  Whenever  this 
order  is  written  by  an  indorser,  whether  a  first  or  later  in- 
dorser, it  is  an  indorsement  in  full,  and  the  indorsee  cannot 
transfer  the  note  excepting  by  his  indorsement,  which  again 
may  be  in  full  or  in  blank.  It  is  now  quite  settled  that  the 
executor  or  administrator  of  a  deceased  payee  may  indorse 
the  note  of  his  testator,  (c)  but  he  has  no  right  to  deliver 
to  the  indorsee  a  note  which  was  indorsed  by  the  deceased, 
but  never  delivered  by  him.  {cc)  The  same  rule  holds  also 
in  the  case  of  an  assignee  of  an  insolvent  payee,  {d) 

The  indorsement  of  a  blank  note  binds  the  indorser  to  any 
terms  as  to  amount  and  time  of  payment  which  the  party  to 
whom  he  intrusts  the  paper  inserts,  (e)  If  the  note  be  origi- 
nally made  payable  to  "  bearer,"  it  is  negotiated  or  trans- 
*ferred  by  delivery  only,  and  needs  no  indorsement,  (/)  any 
person  bearing  or  presenting  the  note  becoming  in  that  case 
the  party  to  whom  the  maker  of  the  note  promises  to  pay 
it.  And  the  holder  of  negotiable  paper,  indorsed  in  blank 
or  made  payable  to  bearer,  is  presumed  to  be  the  owner  for 

[hh)  In  order  to  a  yalid  indorsement,  as  having  settled   the  law   upon    this 

the  payee  or  holder  must  not  only  write  point.     See  Watkins  v.  Maule,  2  Jac.  & 

his  name  on  the  back,  but  must  deliver  Walk.  237,  243  ;  Shaw,   C.  J.,  Hand  v. 

the  bill  to  the  indorsee.   Emmett  v.  Tot-  Hubbard,  4  Met.  252,  258. 

tenham,  20  E.  L.  &  E.  348;  Sainsbury  (re)  Bromage  v.  Lloyd,  1   Exch.  31 ; 

t7.  Parkinson,  lb.  351.    See  also  Hall  t;.  Clark    v.   Sigourney,    17    Conn.   511; 

Wilson,  16  Barb.  548.  Clark  v.  Boyd,  2  Ham.  279. 

(c)  This  question  was  ably  discussed  {d)  Pinkerton   v.  Marshall,  2  H.  Bl. 

in  the   case   of  Rawlinson   v.  Stone,  3  334  ;  Thomason  v.  Frere,  10  East,  418. 

Wils.  1.     This  was  an  action  upon  a  (c)  Montague  v.  Perkins,  22  E.  L.  & 

promissory  note,  payable   to  A.  B.,  or  E.  516  ;    Russel   r.  Langstaffe,   Doug, 

order,  and  indorsed  by  the  administra-  514 ;  Violett  v.  Patton,  5   Cranch,  142, 

trix  of  A.  B.    It  was  objected  that  the  151  ;  Johnson  v.  Blasdale,  1  S.  &  M.  1 ; 

indorsement  was  not  valid  so  as  to  give  Torrey  v.  Fisk,  10  S.  &  M.  590  ;  Smith 

the  indorsee  an  action  in  his  own  name.  v.  "Wyckoft",  3  Sandf.  Ch.  77,  90. 

But  the  objection  was  overruled  ;  and  (/)  Wilbour  v.  Turner,  5  Pick,  526 ; 

this  case  has  been  considered  ever  since  Dole  i'.  Weeks,  4  Mass.  451. 

[212] 


CH.  XV.]  INDORSEMENT.  -206 

consideration.  If  circumstances  cast  suspicion  on  his  owner- 
ship, as  if  it  came  to  him  from  or  through  one  who  had 
stolen  it,  then  he  must  prove  that  he  gave  value  for  it ;  and 
on  such  proof  will  be  entitled  to  it,  unless  it  is  shown  that 
he  was  cognizant  of  the  want  of  title,  or  had  such  notice  or 
means  of  knowledge  as  made  his  negligence  equivalent  to 
fraud,  {g-) 

Strictly  speaking,  only  a  payee  or  one  made  payee  by  sub- 
sequent indorsement,  can  become  himself  an  indorser.  It  is 
not  enough  that  a  name  is  written  on  the  back  of  a  note  or 
bill,  for  although  this  is,  literally  speaking,  an  indorsement, 
whether  it  be  so  or  not  by  law  and  the  usage  of  merchants 
must  depend  upon  the  character  of  the  signer.  The  effect  of 
a  simple  signature,  without  any  other  words,  on  the  back  of  a 
note,  by  one  not  the  payee,  has  been  much  considered  and 
variously  decided.  From  the  authorities  which  we  deem 
entitled  to  most  respect  upon  this  question,  and  from  general 
principles,  we  come  to  these  conclusions  :  If  any  one  not  the 
payee  of  a  negotiable  note,  or  in  the  case  of  a  note  not  nego- 
tiable, if  any  party,  writes  his  name  on  the  back  of  the  note 
at  the  time  it  is  made,  his  signature  binds  him  in  the  same 
way  as  if  it  was  on  the  face  of  the  note  and  below  that  of 
the  maker,  that  is  to  say,  he  is  held  as  a  joint  maker  or  as  a 
joint  and  several  maker  according  to  the  form  of  the  note,  (g-g-) 
If  the  signature  be  at  a  distinctly  later  period,  after  the  mak- 
ing and  delivery  of  the  note,  the  signer  as  to  the  payee  is  not 

(.7)  Miller  i;.  Race,  1  Burr.  452  ;  Grant  Bailey  v.  Bidwell,  13   M.   &   W.   73  ; 

V.  Vaughan,  3  Burr.  1516;  Peacock  v.  Case  v.  Mechanics'  Banking   Associa- 

Rhodes,  Doug.  633;  Collins  v.  Martin,  tion,  4   Corns.  166.     It  is  otherwise  if 

1  B.  &  P.  648  ;  Lawson  v.  Weston,  4  the  defendant  merely   show  a  want  of 

Esp.  56;  King  v.  Milsom,  2  Camp.  5;  consideration  when  the  note  was  given. 

Solomons  i;.  Bank  of  England,  13  East,  Middlcton  Bank   v.  Jerome,  18   Conn. 

135,  in  notis;  Paterson  v.  Hardacre,  4  443;  Thompsons.  Shepherd,  12  Mete. 

Taunt.   114;    Cruger  v.  Armstrong,  3  311. 

Johns.   Cas.  5  ;  Conroy  v.   Warren,  3         {gg)   Campbell  v.  Butler,   14   Johns. 

Johns.  Cas.  259 ;  Thurston  !;.  McKown,  349;    Dean   v.    Hall,    17    Wend.   214; 

6  Mass.  428  ;  Munroe  t;.  Cooper,  5  Pick.  Sampson   v.   Thornton,  3    Mete.  275; 

412;  Wheeler  i-.  Guild,  20  Pick.  545;  Union    Bank   v.  Willis,  8    Mete.  504; 

Aldrich  V.  Warren,  16  Maine,  465.     It  Austin  v.  Boyd,  24  Pick.  64;  Brj'ant  v. 

is   now    well    settled,    overruling    the  Eastman,  7  Cush.  Ill ;  Adams  v.  Hardy, 

earlier  cases,  that  if  the  defendant  prove  32  Maine,  339;  Martin  i'.  Boyd,  11  N. 

a  note  fraudulent  or  illegal  in  its  incep-  H.   385;  Flint  v.  Day,  9    Verm.  345; 

tion   this   throws   the    burden    on    the  Bright  v.    Carpenter,"  9    Ham.    (Ohio) 

plaintiff  of  proving  that  he  paid  value.  139;  Carroll  v.  Weld,  13  111.  682.     See 

Smith   V.  Brainc,  3  E.  L.  &   E.  379  ;  also  Ellis  v.  Brown,  6  Barb.  282. 

[213] 


-  206  THE   LAW   OF   CONTKACTS.  [BOOK  I. 

a  maker  but  a  guarantor,  (gh)  His  promise  is  void  if  without 
consideration,  but  the  consideration  may  be  the  original  con- 
sideration for  the  note,  if  the  note  was  received  at  his  request 
and  upon  his  promise  to  guarantee  the  same,  or  perhaps  if 
the  note  was  made  at  his  request  alone,  without  the  promise, 
and  more  certainly  if  the  note  was  given  for  his  benefit;  or 
the  consideration  for  the  guarantee  may  be  a  new  one  mov- 
ing in  some  way  from  the  holder.  In  the  last  case  if  the  note 
is  not  negotiable  the  party  indorsing  can  be  held  only  as 
maker  or  as  guarantor,  but  if  the  note  be  negotiable  the 
question  might  arise  whether,  although  the  party  signing  is 
only  a  guarantor  as  to  the  payee  or  party  receiving  the  note 
from  him,  he  may  not  be  liable  to  subsequent  parties  as  in- 
dorsee For  if  he  be  only  a  guarantor  he  may  make  the  de- 
fence of  a  want  of  consideration  against  any  holder,  but  if 
indorser,  only  against  his  immediate  indorsee.  This  question 
we  should  answer  by  saying  that  if  the  payee  writes  his 
name  over  the  name  of  the  other,  thus  making  him  to  all 
appearances  a  second  indorser,  he  might  be  held  as  such  by 
any  subsequent  ignorant  holder  for  value,  because  he  has 
enabled  the  payee  to  give  his  signature  this  appearance  and 
therefore  this  effect.  And  we  should  go  further  and  consider 
that  he  would  be  liable  to  any  holder  even  with  full  notice, 
because  he  wrote  his  name  for  the  purpose  of  giving  the 
payee  his  credit,  and  therefore  impliedly  authorized  the  payee 
to  give  his  suretyship  any  character  perfectly  compatible  with 
the  manner  and  place  of  his  signature,  so  that  unless  there 
was  a  special  agreement  between  the  parties  that  this  should 
not  be  done,  which  was  also  known  to  the  holder,  the  payee 
might  transfer  the  note,  making  the  signer  a  second  indorser, 
and  liable  as  such. 

Bills  and  notes  are  usually  considered  together ;  the  law 
respecting  them  being  in  most  respects  the  same.  The  maker 
of  a  note  being  liable,  generally,  in  the  same  way  as  the 
acceptor  of  a  bill. 

(gh)  Ibid.    Tcnney  v.  Prince,  4  Pick.  385  ;  Samson  v.  Thornton,  3  Mete.  275. 


[214] 


en.  XV.] 


INDORSEMENT. 


-206 


SECTION  II. 
OP   THE    ESSENTIALS    OF   NEGOTIABLE    BILLS    AND    NOTES. 

Promissory  notes  were  made  negotiable  in  England  by 
the  statute  of  3  &  4  Anne  ;  but  it  has  been  doubted  there 
whether  a  note,  payable  to  the  maker's  own  order,  was  a 
negotiable  note,  (h)     In  this  country  it  is  so  undoubtedly.     In 


(A)  Written  securities,  in  the  form  of 
promissory  notes,  made  payable  to  the 
maker  or  liis  order,  and  by  him  indorsed, 
are  an  irregular  kind  of  instrument, 
which  has  grown  into  use  among  mer- 
chants since  the  statute  of  Anne,  and  is 
now  extremely  common  in  this  coun- 
try and  in  England.  At  what  precise 
time  they  first  came  into  use,  and  what 
was  the  occasion  which  gave  rise  to 
them,  it  is  impossible  to  say.  Baron 
Parke,  in  Hooper  v.  Williams,  2  Exch. 
21,  characterizes  them  as  "securities  in 
an  informal,  not  to  say  absurd,  form, 
probably  introduced  long  after  the  sta- 
tute of  Anne  —  for  what  good  reason  no 
one  can  tell  —  and  become  of  late  years 
exceedingly  common."  So  Chief  Jus- 
tice Wilde,  in  Brown  v.  De  Winton,  6 
C.  B.  342,  said  that  notes  in  this  form, 
according  to  his  experience,  which  ex- 
tended over  a  period  exceeding  forty 
years,  — were  very  far  from  uncommon. 
They  seem  not  to  have  attracted  the  at- 
tention of  courts  until  a  recent  date. 
It  has  always  been  the  received  opinion 
in  this  country  that  instruments  in  this 
form  were  negotiable  within  the  statute 
of  Anne,  and  that  they  differed  in  no 
material  particular  from  notes  in  the 
ordinary  form.  Such  also,  according  to 
the  observation  of  eminent  counsel,  in 
Brown  v.  De  Winton,  was  the  I'cceivcd 
opinion  in  England,  until  the  case  of 
Plight  II.  Maclean,  16  M.  &  W.  51.  Since 
that  case,  the  nature  and  construction 
of  instruments  of  this  kind  have  been 
very  learnedly  and  elaborately  discuss- 
ed by  tiie  three  principal  common-law 
courts  in  Westminster  Hall.  The  case 
of  Flight  V.  Maclean  came  up  in  the 
Court  of  Exchequer,  in  1846.  The 
declaration  stated  that  the  defendant 
made  his  promissory  note  in  writing, 
and  thereby  promised  to  pay  to  the  or- 


der of  the  defendant  £.500  two  months 
after  date,  and  that  the  defendant  then 
indorsed  the  same  to  the  plaintiff.  To 
this  there  was  a  special  demurrer,  as- 
signing for  cause,  that  it  was  uncertain 
whether  the  plaintiff  meant  to  charge 
the  defendant  as  maker  or  as  indorser 
of  the  note,  and  that  a  note  payable  to 
a  man's  own  order  was  not  a  legal  in- 
strument, and  could  not  be  negotiated. 
The  court  sustained  the  demurrer  with- 
out much  discussion,  "  on  the  ground 
that  the  instrument  in  question,  made 
payable  to  the  maker's  order,  was  not  a 
promissory  note  within  the  statute  of 
Anne,  which  requires  that  a  promissory 
note,  to  be  assignable,  shall  be  made 
payable  by  the  party  making  it  to  some 
'  other  person,'  or  his  order,  or  unto 
bearer."  During  the  argument,  how- 
ever, Parke,  B.  put  to  the  counsel  this 
question:  —  "Though  by  the  law  mer- 
chant the  note  cannot  be  indorsed,  could 
not  the  defendant  make  this  a  promis- 
sory note  by  indorsing  it  to  another  per- 
son ?  "  This  case  was  followed  the  next 
3-ear  in  the  Queen's  Bench  bv  the  case 
of  Wood  V.  Mytton,  10  Q.  B.  805,  in 
which  precisely  the  same  question  was 
presented  as  in  Flight  v.  Maclean,  ex- 
cept that  in  the  latter  it  arose  on  a  mo- 
tion in  arrest  of  judgment,  wlrereas  in  the 
former  it  arose  on  a  special  demurrer. 
The  question  was  argued  at  consider- 
able length,  and  Lord  Deitman,  after  a 
very  minute  examination  of  the  statute 
of  Anne,  lield  that  the  instrument  de- 
clared on  was  a  promissory  note  within 
the  terms  of  the  statute,  and  judgment 
was  given  for  the  plaintiff.  It  is  to  be 
observed,  however,  timt  Patteson,  J., 
during  the  argument  of  tiiis  case,  put  to 
the  counsel  a  question  similar  to  that 
put  by  Baron  Parke  in  Flight  v.  Mac- 
lean.   "  Whatever,"  said  he,  "  may  be 

[215] 


207 


THE   LAW   OF   CONTRACTS. 


[book 


some  of  our  States  there  are  statutory  provisions  permitting 
negotiable  paper  to  be  under  seal. 


the  case  with  respect  to  a  note  like  this 
before  indorsement,  may  it  not,  as  soon 
as  it  is  indorsed,  come  within  the  sta- 
tute, either  as  a  note  payable  to  bearer, 
if  it  is  indorsed  in  bUink,  or  as  a  note 
payable  to  the  person  desijjfnatcd,  if  it  is 
indorsed  in  full  V  In  1848  the  question 
came  up  again  in  the  Court  of  I']xche- 
quer,  in  the  case  of  Hooper  y.  Williams, 
2  Exch.  13.  The  instrument  declared 
on  in  this  case  was  similar  to  those  in 
the  two  former  cases,  being  made  paya- 
ble to  the  defendant's  own  order,  and 
by  him  indorsed  in  blank.  The  plead- 
er, however,  adopting;  the  suggestion  of 
Mr.  Baron  Parke  and  Mr.  Justice  Pat- 
teson,  declared  as  upon  a  note  payable 
to  bearer.  At  the  trial  the  defendant 
objected  that  there  was  a  variance  be- 
tween the  note  and  the  declaration,  and 
the  case  coming  before  the  court  in 
banc  upon  this  objection,  Parke,  B.,  in 
delivering  the  opinion  of  the  court,  said  : 
"  It  appears  to  us,  that  the  instrument  in 
this  case  was,  when  it  first  became  a  bind- 
ing promissory  note,  a  note  payable  to 
bearer,  and  consequently  was  properly 
described  in  the  declaration.  This  view 
of  the  case  reconciles  the  decision  of 
this  court  in  Flighty.  Maclean  with  that 
of  the  Queen's  Bench  in  Wood  v.  Myt- 
ton  ;  but  not  the  reasons  given  for  those 
decisions.  In  the  case  in  this  court  the 
declaration  was  bad  on  special  demurrer, 
as  it  did  not  set  out  the  legal  effect  of 
the  instrument.  In  that  in  the  Queen's 
Bench,  the  motion  being  for  arrest  of 
judgment,  the  declaration  was,  in  sub- 
stance, good ;  for  it  set  out  an  inarti- 
ficial contract,  which  had  the  legal  effect 
of  a  valid  note  payable,  as  stated  on  the 
record,  to  the  plaintiff.  The  difference 
between  the  two  courts  in  the  construc- 
tion of  the  statute  is  of  no  practical  con- 
sequence, as,  in  our  view  of  the  case, 
securities  in  this  informal,  not  to  say 
absurd  form,  are  still  not  invalid  ;  and 
it  might  be  of  much  inconvenience  if 
they  were,  for  there  is  no  doubt  that  this 
form  of  note,  probably  introduced  long 
after  the  statute  of  Anne,  and  for  what 
good  reason  no  one  can  tell,  has  become 
of  late  years  exceedingly  common  ;  and 
it  is  obvious  that,  until  they  are  indors- 
ed, they  must  always  remain  in  the 
hands  of  the  maker  himself,  and  so  he 
can  nevtr  be  liable  upon  them."  Shortly 

[216] 


after  the  decision  in  this  case,  the  same 
question  eame  up  in  the  Common 
Bench,  in  the  cases  of  Brown  v.  De 
Winton  and  Gay  v.  Lander,  6  C.  B. 
336.  In  Brown  v.  De  Winton  the 
question  came  up  in  the  same  shape  as 
in  Wood  V.  Mytton,  and  Coltman,  J.,  in 
giving  the  judgment  of  the  court,  de- 
livered a  very  able  and  elaborate  opi- 
nion, in  which  he  agreed  entirely  with 
the  view  taken  by  the  Court  of  Exche- 
quer. In  Gay  v.  Lander,  the  question 
was  presented  in  a  little  different  light. 
It  is  a  familiar  principle  in  the  law  of 
negotiable  paper,  that  when  a  note  is 
made  payable  to  A.  B.  or  his  order,  the 
words  "his  order"  impart  to  the  note 
a  permanently  assignable  quality  into 
whose  hands  soever  it  may  come ;  so 
that,  though  A.  B.  indorse  the  note  to 
C.  D.  specially,  without  using  the  words 
"  or  his  order,"  yet  C.  D.  may  indorse  it 
in  turn  to  whomsoever  he  pleases.  The 
point  raised  in  Gay  v.  Lander  was, 
whether  the  indorsement  should  receive 
the  same  construction  in  the  case  of  a 
note  payable  to  the  order  of  the  maker 
and  by  him  indorsed,  and  the  Court 
held  that  it  should.  Collman,  J.,  in  de- 
livering the  opinion,  said  : — "  We  think 
that  the  principle  on  which  the  case  of 
Brown  v.  De  Winton  was  decided,  will 
extend  to  this  case.  The  principle  ou 
which  that  case  was  decided  is,  that  the 
note,  before  it  was  indorsed,  was  in  the 
nature  of  a  promise  to  pay  to  the  per- 
son to  whom  the  maker  should  after- 
wards, by  indorsement,  order  the  amount 
to  be  paid ;  and  that,  after  the  note  is 
indorsed  and  circulated,  it  must  be  taken 
as  against  the  party  so  making  and  in- 
dorsing the  note,  that  he  intended  that 
his  indorsement  should  have  the  same 
effect  as  the  indorsement  by  the  payee 
of  a  note  payable  to  the  order  of  a  per- 
son other  than  the  maker  would  have 
had.  Now,  it  is  well  established  that, 
if  a  note  be  made  payable  to  J.  S.  or 
order,  and  J.  S.,  in  such  case,  indorses 
the  note  speciably  to  Smith  &  Co.,  with- 
out adding  '  or  order,'  Smith  &  Co. 
may  convey  a  good  title  to  any  other 
person  by  indorsement."  It  might,  per- 
haps, be  inferred  from  what  fell  from 
Baron  Parke  in  Hooper  v.  Williams, 
that  he  entertained  a  different  opinion 
on  this  last  point,  but  the  point  did  not 


CH.  XV.] 


INDORSEMENT. 


208-*209-*210 


It  is  sufficient  in  law  if  the  maker's  name  appears  in  the 
note  ;  as,  "  I,  A.  B.,  promise,  &c."  But  signature  at  the  bot- 
*tom  is  so  usual,  that  the  want  of  it  would  taint  the  note 
with  suspicion.  (^) 

As  the  negotiable  bill  or  note  is  intended  to  represent  and 
take  the  place  of  money,  it  must  be  payable  in  money,  and 
not  in  goods ;  (j)  and  although  it  has  been  held  in  this  coun- 
try that  it  might  be  made  payable  in  bank  bills  which  were 
*  universally  current  as  cash,  (k)  the  weight  of  authority  and 
reason  is  against  this,  and  in  favor  of  the  English  rule,  which 
requires  them  to  be  payable  in  money.  (/)  The  payment 
must  not  rest  upon  any  contingency  or  uncertain  event,  [m) 


arise  in  that  case,  and  probably  his  at- 
tention was  not  particularly  directed  to 
it.  In  Absolon  v.  Marks,  11  Q.  B.  19, 
the  defendant  and  four  others  made  a 
joint  and  several  note,  payable  to  their 
own  order  and  all  indorsed  it  in  blank, 
and  upon  an  action  the  declaration  in 
which  stated  that  the  defendant  made 
his  promissory  note  payable  to  his 
own  order,  and  indorsed  the  same  to 
the.  plaintiff  and  promised  to  pay  him 
the  same  according  to  its  tenor  and 
effect,  Lord  Denman  decided  that  the 
note  having  been  indorsed  was  thereby 
made  certain  and  a  good  promissory 
note  under  the  statute.  See  also  Woods 
V.  Ridley,  11  Humph.  194;  Wardens, 
&e.,  of  St.  James  Church  v.  Moore,  1 
Carter  (Ind.)  289. 

(i)  Taylor  v.  Dobbins,  1  Stra.  399; 
Elliot  V.  Cooper,  2  Lord  Eaym.  1376  ; 
3  Kent's  Comm.  78. 

(j)  Jerome  v.  Whitney,  7  Johns.  321  ; 
Thomas  v.  Roosa,  7  Johns.  461 ;  Peay 
V.  Pickett,  1  Nott  &  McCord,  2.54 ; 
Rhodes  v.  Lindly,  3  Hammond,  51  ; 
Atkinson  v.  Manks,  1  Cow.  691,  707; 
Clark  V.  King,  2  Mass.  524;  Bunker 
V.  Athearn,  35  Maine,  364.  So  the  bill 
or  note,  in  order  to  be  negotiable,  must 
contain  a  promise  for  the  payment  of 
money  onli/,  and  not  for  the  payment  of 
money  and  the  performance  of  some 
other  act.  Austin  v.  Burns,  16  Barb. 
643.  Therefore,  where  a  note  contained 
a  promise  to  deliver  up  horses  and  a 
wharf,  and  also  to  pay  money  at  a 
particular  day,  it  was  held  not  to  be 
within  the  statute.  Martin  v.  Chauntry, 
2  Stra.  1271.     A  note,  however,  need 

VOL.  I.  19 


not  contain  the  words  '■^promise  to  pcty," 
in  order  to  come  within  the  statute  ;  it 
is  sufficient  if  it  contain  words  which/ 
upon  a  reasonable  construction,  import 
a  promise  to  pay.  Therefore,  where  a 
note  contained  a  promise  by  the  maker 
to  be  accountable  to  A.  or  order  for  100/., 
it  was  held  to  be  witiiin  the  statute. 
Morris  v.  Lee,  2  Ld.  Raym.  1396,  8 
Mod.  362,  1  Stra.  629.  And  so  where 
the  note  set  forth  in  the  declaration  was, 
"  I  acknowledge  myself  to  be  indebted 
to  A.  in  — l;  to  be  paid  on  demand,  for 
value  received  ; "  on  demurrer  to  the  de- 
claration, the  court,  after  solemn  argu- 
ment, held  that  this  was  a  good  note 
within  the  statute,  the  words  "  to  be 
paid  "  amounting  to  a  promise  to  pay  ; 
observing,  that  the  same  words  in  a 
lease  would  amount  to  a  covenant  to 
pay  rent.  Casborne  v.  Dutton,  Selw. 
N.  P.  395.  See  also  Hyne  v.  Dewdney, 
11  E.  L.  &E.  400,  and  note. 

(k)  Keith  v.  Jones,  9  Johns.  120  ; 
Judah  V.  Harris,  19  Johns.  144  ;  Swet- 
land  V.  Creigh,  15  Ohio,  118. 

(l)  McCormick  v.  Trotter,  10  S.  & 
Rawle,  94  ;  Gray  v.  Donahoe,  4  Watts, 
400;  Hasbrook  v.  Palmer,  2  McLean, 
10;  Fry  v.  Rousseau,  3  McLean,  106  ; 
Smith  V.  Philadelphia  Bank,  14  Penn. 
S.  R.  525  ;  3  Kent's  Comm.  75. 

(m)  Alexander  v.  Thomas,  2  E.  L. 
&  E.  286  ;  Dawkes  v.  Lord  De  Lorane, 
3  Wils.  207  ;  Beardesley  v.  Baldwin,  2 
Stra.  1151  ;  Roberts  v.  Peake,  1  Bur. 
323;  Cook  v.  Satterlee,  6  Cow.  108; 
Van  Vacter  v.  Fhxck,  1  S.  &  Marsh, 
393  ;  Palmer  v.  Pratt,  9  Moore,  358. 

[217] 


211*  THE  LAW   OF   CONTRACTS.  [BOOK  I. 

Hence  a  draft  on  a  public  officer,  as  such,  is  not  negotiable, 
because  it  is  presumably  drawn  against  a  contingent  public 
fund,  (n)  But  if  the  event  must  happen,  an  uncertainty  as 
to  the  time  of  its  happening  docs  not  prevent  the  bill  or  note 
from  being  negotiable,  (o) 

Usually  bills  and  notes  express  the  consideration  by  say- 
ing "  for  value  received  ;  "  but  where  this  is  not  expressed  it 
is  implied  by  law,  both  as  to  the  makers  and  the  acceptors  or 
indorsers  of  negotiable  bills  and  notes,  and  this  presumption 
must  be  rebutted  by  evidence  if  the  defence  rests  on  want  of 
.consideration,  (p)  And  the  presumption  is  so  far  rebutted 
as  to  cast  the  burden  of  proof  on  the  holder,  by  evidence 
making  the  consideration  doubtful,  {pp) 

To  a  note  there  need  be  but  two  original  parties,  a  maker 
and  a  payee.  To  a  bill  there  are  three,  drawer,  drawee,  and 
payee.  The  drawee  is  not  bound  until  acceptance  ;  and  then 
having  become  the  acceptor,  he  is  regarded  as  primarily  the 
promisor,  and  the  drawer  only  collaterally  ;  and  the  drawer 
is  liable  in  very  much  the  same  way  as  the  indorser  of  a  note. 
We  shall  treat  at  this  time  only  of  negotiable  bills  and  notes, 
because  it  is  only  they  which  permit  new  parties  to  be  intro- 
duced by  indorsement,  who  have  all  the  rights  of  the  original 
parties.  Where  instruments  are  not  negotiable,  third  parties 
may  become  interested  ;  but,  if  they  are  to  be  regarded  as 
new  parties  at  all,  it  is  only  with  much  qualification. 

*  SECTION  III. 
OF   INDORSEMENT. 

The  indorsement  of  a  bill  or  note  passes  no  property,  un- 
less the   indorser   had   at  the  time   a  legal   property  in   the 

(?!)  Eeeside  v.  Knox,  2  "SVliart.  233.  is  to  he  made  as  long  as  the  interest  is  paid, 

(o)  Cooker.  Colehan,  2  Stra.  1217;  M'as  r.ot  a  promissory  note. 

Andrews  y.  Franklin,  1  Stra.  24  ;  Evans  {p;  Ilatcli  v.  Traves,  11   Ad.  &  Ell. 

V.  Underwood,  1   Wils.  262  ;  Dawkcs  v.  702  ;  Grant  r.  Da  Costa,  3  INI.  &  S-  351  ; 

Lord  Loranc,  3  Wils.  207,213.    In  Sea-  Benjamin  v.  Tillman,  2  McLean,  213  ; 

cord  V.  Burling,  5  Denio,  444,  it  was  Bristol  r.  "Warner,  19  Conn.  7  ;  Poplc- 

held  that  an  agreement  in  writing  by  well  v.  Wilson,  1   Stra.  264  j  Lines  v. 

which  the  subscriber  to  it  promised  to  Smith,  4  Florida,  47. 

pay  another  a  sum  of  money  on  demand  (/)/))  Delano  v.  Bartlett,  6  Cush.  364. 

with  interest,  and  added,  but  no  dcmatid  But  see  Fitch  v.  Kedding,  4  Sanf.  130. 

[218] 


CH.  XV.] 


INDORSEMENT. 


^212 


note,  (q)  And  therefore  a  married  woman  cannot  indorse  a 
note  made  payable  to  her  before  or  during  her  covertm-e.  (r) 
Nor  does  the  property  in  the  note  pass  by  indorsement,  if  the 
indorsee  knew  at  the  time  he  received  it  that  the  indorser  had 
no  right  to  make  the  transfer,  (s)  A  party  receiving  a  bill 
or  note  as  agent,  or  for  any  particular  purpose,  and  exceeding 
his  authority  or  violating  his  duty,  may  nevertheless  pass  the 
property  in  the  note  to  a  bond  fide  holder,  (t)     But  *no  as- 


{(])  Mead  v.  Young,  4  Term,  28.  In 
this  case  it  was  held  that  in  an  action  by 
the  indorsee  against  the  acceptor  of  a 
*hill  of  exchange,  drawn  payable  to  "  A. 
or  order,"  it  is  competent  to  the  defend- 
ant to  give  evidence  that  the  person  who 
indorsed  to  the  plaintiff"  was  not  the  real 
payee,  though  he  be  of  the  same  name, 
and  though  there  be  no  addition  to  the 
name  of  the  payee  on  the  bill.  The  in- 
dorsement and  delivery  must  both  be 
made  by  the  person  then  having  the 
legal  interest  in  the  note ;  and  if  a  note 
is  indorsed  by  the  payee,  and  retained 
in  his  possession,  and  after  his  death  is 
delivered  by  his  executor  to  the  person 
to,  whom  it  was  indorsed,  the  title  to 
the  note  is  not  thus  transferred.  Bro- 
mage  v.  Lloyd,  1  Exch.  R.  31  ;  Lloyd 
V.  Howard,  1  E.  L.  &  E.  227,  note; 
Awde  V.  Dixon,  5  E.  L.  &  E.  512;  Pres- 
cott  V.  Brinsley,  6  Cush.  233  ;  Clark  v. 
Boyd,  2  Hammond,  56 ;  Clark  v.  Si- 
gourney,  17  Conn.  511.  See  also  Bay 
V.  Coddington,  5  Johns.  Ch.  54 ;  Law- 
rence V.  Stonington  Bank,  G  Conn.  521. 

(r)  Savage  v.  King,  17  Maine,  301. 
See  Barlow  v.  Bishop,  1  East,  432; 
Commonwealth  v.  Manley,  12  Pick.  173. 

(s)  See  Roberts  v.  Eden,  1  Bos.  & 
Pul.  398 ;  Stoddard  v.  Kimball,  6  Cush. 
470. 

(t)  Thus  where  the  drawer  of  a  bill 
of  exchange,  which  had  been  accepted, 
wrote  his  name  across  the  back  of  it, 
and  delivered  it  to  A.  to  get  it  discount- 
ed, and  A.  while  the  bill  was  yet  run- 
ning deposited  it  with  B.,  as  security  for 
money  advanced  to  himself,  but  without 
any  fraud  in  B.,  this  was  held  to  be  a 
valid  indorsement  from  the  drawer  to 
B.  Palmer  v.  Richards,  1  E.  L.  &  E. 
529.  In  this  case,  Parke,  Baron,  said : 
"  I  think  this  was  a  perfectly  good  in- 
dorsement from  Edwards  to  Tingey. 
If  the  allegation  in  the  declaration  were 
that  there  had  been  an  indorsement  of 


this  bill  from  Edwards  to  Brown,  it 
would  be  a  question  of  fact  whether  the 
writing  of  Edwards's  name  on  the  back 
of  the  instrument,  accompanied  by  a  de- 
livery of  it  to  Brown,  meant  to  transfer 
the  property  in  the  bill  to  him,  so  as  to 
enable  him  to  indorse  it  as  his  own,  or 
merely  to  hand  it  over  to  another  party. 
As  to  the  case  which  has  been  cited  of 
Lloyd  V.  Howard,  I  think  the  decision 
there  was  perfectly  right,  and  an  author- 
ity for  saying  that  there  was  no  indorse- 
ment from  Edwards  to  Brown;  for  the 
mere  writing  of  a  man's  name  on  the 
back  of  an  instrument  is  not  enough  for 
that  purpose ;  it  is  only  one  act  towards 
it ;  and  Lloyd  v,  Howard  shows  that  the 
writing  the  nanc  and  handing  the  in- 
strument to  a  third  person,  without  any 
intention  to  pass  the  property  iu  it  to 
that  person,  is  insufficient  to  constitute 
an  indorsement  to  that  person.  But  if 
a  man  writes  his  name  on  the  back  of  a 
bill  of  exchange  in  order  that  it  may  be 
negotiated,  and  any  person  afterwards 
receives  it  for  value,  it  does  not  lie  in 
the  indorser's  mouth  to  say  that  the  bill 
was  not  indorsed  to  that  person  ;  and  it 
has  been  the  established  rule  ever  since 
the  case  of  Collins  v.  Martin,  1  B.  &  P. 
648,  that  any  person  who  thus  takes  a 
bill  for  value  is  the  indorsee  of  it.  I  think 
that  Edwards,  by  putting  his  name  on 
the  back  of  this  bill,  and  putting  it  into 
the  hands  of  his  agent,  with  authority  to 
represent  him,  who  hands  it  over  to  a 
third  party,  ought  not  to  be  permitted 
to  say  that  he  did  not  indorse  it  to  any 
person  who  took  it  for  value  from  his 
agent.  The  question,  therefore,  here  is, 
whether,  there  being  no  proof  of  any 
fraud  in  Tingey,  he  may  not  be  con- 
sidered a  holder  of  the  bill,  and  Ed- 
wards, as  having  indorsed  it  to  him. 
The  case  is  distinguishable  from  Lloyd 
V.  Howard  in  this,  that  if  this  bill  were 
indorsed  to  Brown  solely  with  the  view 

[219] 


-212  THE    LAW    OF    CONTRACTS.  [bOOK  I. 

signee,  even  for  good  consideration,  can  hold  the  bill  or  note, 
if  he  knew  or  had  direct  and  sufficient  means  of  knowing 
that  the  transfer  of  the  same  to  him  was  wrongful  or  unau- 
thorized. The  assignor  may  have  held  the  bill  or  note  by 
indorsement  to  him  ;  and  as  an  indorsement  may  always  be 
restricted  or  conditioned  at  the  pleasure  of  the  indorser,  the 
assignor  was  bound  to  obey  such  restriction  ;  and  an  assignee 
by  indorsement,  who  knows  that  the  indorsement  was  made 
in  disregard  of  such  restriction,  has  no  property  in  the  bill  or 
note,  (ii)  If  a  negotiable  bill  or  note  be  indorsed  for  con- 
sideration, so  that  the  whole  property  passes  to  the  indorsee, 
its  negotiable  quality  passes  with  it ;  and  it  is  said  that  this^ 
negotiability  cannot  be  restrained  by  the  indorsement.  But 
where  the  indorsement  is  without  consideration,  and  is  intend- 
ed merely  to  give  the  indorsee  authority  to  receive  money  for 
the  indorser,  there  the  restriction  operates;  and  if  such  in- 
dorsee again  indorses  it  over,  the  second  indorsee  cannot  hold 
it,  because  the  first  indorsement  gave  him  notice  that  the  first 
indorsee  had  no  power  to  transfer  the  note,  (v)  And  if  a 
note  is  once  indorsed  in  blank  it  is  thereafter  transferable  by 
mere  delivery  so  long  as  the  indorsement  continues  blank, 
and  its  negotiability  cannot  be  restricted  by  subsequent  spe- 
cial indorsements,  but  the  holder  may  strike  them  all  out  and 
recover  under  the  blank  indorsement,  (vv)  Where  one  has 
acquired  a  bill  by  indorsement,  bond  fide,  he  may  hold  it  and 
recover  upon  it,  although  earlier  parties  knew  that  it  was 
transferred  wrongfully  or  without  authority,  [lu) 

to  enable  him  to  pass  it  away,  and  not  &  C.  622 ;  S.  C.  3  M.  &  P.  229  ;  5  Bing. 

to  treat  him  as  owner  of  the  bill  him-  525;  Robertson  w.  Kensington,  4  Taunt, 

self,  no  property  passed  from  Edwards  30.     See  also  Bolton  v.  Puller,  1  Bos. 

to  him ;  and  if  such  property  had  been  &  Pull.  539 ;  Ramsbotham  v.  Cator,  1 

alleged,  the  case  of  Lloyd  v.  Howard  Starkie,  228;  Savage  r.  Aldren,  2  Stark, 

would  apply.     But  that  decision   does  232. 

not  hold  with  respect  to  a  third  person  (v)  Edie  v.  East  India  Co.  2  Burr, 

who  received  it  from  the  agent  whom  1216,  per  ]F//»iof,  J.,  Wilson  v.  Holmes, 

Edwards  intrusted  with  it,  and  who  has  5  Mass.  543 ;  Power  v.  Finnie,  4  Call, 

paid  value  for  it."     See  also  Marston  r.  411,  per  lioane,  J. 

Allen,  8   M.   &   W.  494;    Andrews   v.  (vv)  Smith  v.   Clarke,  1    Esp.    180; 

Bond,  16  Barb.  633  ;  Smith  v.  Braine,  Peake's  Cases,  225,  per  Lord  Kenyon ; 

3  E.  L.  &  E.  379;  Moody  v.  Threlkeld,  Mitchell  v.  Fuller,  15  Penn.  268. 

13  Georgia,  555  ;  Stoddard  v.  Kimball,  (w)  And   this  although  his   indorser 

6  Cush.  469.  acquired  the  bill  or  note  by  fraud.     Salt- 

(«)    Ancher    v.    Bank    of   England,  marsh  r.  Tuthill,  13  Ala.  390.     See  also 

Doug.  637 ;  Sigourney  v.  Lloyd,  8  B.  Haly  v.  Lane,  2  Atk.  181,  where  Lord 

[220] 


CH.  XV.]  INDOESEMENT.  *213 

If  a  negotiable  bill  or  note  which  is  open  to  any  defence 
that  can  be  made  only  against  a  holder  with  knowledge  or 
notice,  pass  by  indorsement,  for  consideration,  to  a  holder 
without  knowledge  or  notice,  against  whom  the  defence  can- 
not be  made,  and  this  holder  indorse  it  over  for  consideration 
to  a  party  who  has  knowledge  or  notice  of  the  defence,  such 
indorsee  may  nevertheless  recover  on  the  note,  because  he 
stands  on  the  right  of  his  indorser.  The  party  bound  to  pay 
it  to  the  holder  without  notice  is  not  injured  by  being  bound 
to  pay  it  to  his  indorsee;  and  the  innocent  holder  has  not 
only  the  right  of  enforcing  payment,  but  of  transferring  the 
iiote  by  indorsement;  and  with  it  all  his  rights,  (ivw) 


*  SECTION  IV. 

OF   INDORSEMENT   AFTER  MATURITY. 

Bills  and  notes  are  usually  transferred  by  indorsement  be- 
fore they  are  due.  But  they  may  be  so  transferred  after  they 
are  due,  and  before  they  are  paid.  There  is,  however,  a  very 
important  difference  between  the  effect  of  the  transfer  of  a 
bill  or  note  before  its  maturity,  and  that  of  such  transfer  when 
the  bill  or  note  is  overdue.  The  bond  fide  holder  of  a  bill  by 
indorsement  before  maturity  takes  it  subject  to  no  equities 
existing  between  his  assignor  and  the  promisor  which  are  not 
indicated  on  the  face  of  the  note,  (x)  It  was  once  much  ques- 
tioned whether  he  who  received  a  note  under  circumstances 
of  suspicion  was  not  bound  to  ascertain  for  himself,  and  at 
his  own  peril,  that  the  note  came  rightfully  into  his  hands ; 

ilardwiclce  is  reported  to  have  said: —  Solomons  v.  Bank  of  England,  13  East, 

"Where  there  is  a  negotiable  note,  and  135  ;  Smith  v.  Iliscock,  14  Maine,  449  ; 

it  comes  into  the  hands  of  a  third  or  Chalmers  v.  Lanior,  1  Camp.  383. 
fourth  indorsee,  though  some  of  the  for-         (x)  Brown   v.   Davies,  3    Terra,  82, 

mer  indorsees  might  not  pay  a  valuable  Buller,  J.;    Hall   v.   Wilson,  16   Barb. 

consideration,  yet  if  the  last  indorsee  548;  Fletcher  v.  Gushee,  32  Maine,  587; 

gave  money  for  it,  it  is  a  good  note  as  Walker  v.  Davis,  33  Maine,  516;  Gwynn 

to  him,  unless   there   should   be   some  r.  Lee,  9  Gill,  138  ;  Kohlman  i\  Ludwig, 

fraud  or  equity  against  him  appearing  5  Louis.  Ann.  33.     And  the  doctrine  of 

in  the  case."  Us  pendens  is  held  not  to  apply  to  nego- 

(wif)  Haskell  r.Whittemore,  19  Maine,  liable  notes.    Winston  u.  Westfeldt,  22 

102 :  Thomas  v.  Newton,  2  C.  &  P.  606 ;  Ala.  760. 

19*  [221] 


214* 


THE   LAW    OF   CONTRACTS. 


[book  I. 


and  therefore  a  promisor  might  defend  against  the  note,  by 
showing  that  he  had  lost  it,  or  that  it  was  stolen  from  him, 
or  by  any  other  similar  defence,  showing  also  that  this  might 
have  been  ascertained  by  the  holder  before  receiving  the 
note,  {ij)  But  the  weight  of  recent  authority  is  decidedly  in 
favor  of  the  rule  that  such  holder  is  entitled  to  the  benefit  of 
the  note,  unless  he  is  a  wilful  party  to  the  wrong  by  which  it 
comes  into  his  hands,  or,  perhaps,  has  been  guilty  of  such 
nesflisence  as  amounts  to  constructive  fraud,  {z)  For  even 
gross  negligence  alone  *would  not  deprive  him  of  his  right,  (a) 
The  law  is  otherwise,  however,  if  the  bill  or  note  were  trans- 
ferred to  him  when  overdue.  It  comes  to  him  then  discredit- 
ed ;  he  is  put  upon  his  guard ;  and,  although  he  pays  a  full 
consideration  for  it,  he  receives  nothing  but  the  title  and 
rights  of  his  assignor.  Such  a  bill  or  note  can  no  longer 
represent  a  distinct  and  definite  credit,  or  money  to  be  paid 
at  a  certain  period ;  and  as  it  no  longer  answers  the  purpose 
or  performs  the  functions  of  negotiable  paper,  it  no  longer 
shares  the  privileges  of  such  instruments.  And  it  is  therefore 
said  that  any  defence  which  might  be  made  against  the  as- 
signor may  be  made  available  against  the  assignee,  {b)     This 


{y)  In  Gill  v.  Cubitt,  3  B.  &  C.  466, 
where  a  bill  of  exchange  was  stolen 
during  the  night,  and  taken  to  the  office 
of  a  discount  broker  early  in  the  follow- 
ing morning,  by  a  person  whose  features 
were  known,  but  whose  name  was  un- 
known to  the  broker,  and  the  latter,  be- 
ing satisfied  with  the  name  of  the  ac- 
ceptor, disco'unted  the  bill,  according  to 
his  usual  practice,  without  making  any 
inquiry  of  the  person  who  brought  it ;  it 
was  held  that,  in  an  action  on  the  bill  by 
the  broker  against  the  acceptor,  the  jury 
were  properly  da-ected  to  iind  a  verdict 
for  tlie  defendant,  if  they  thought  that 
the  plaintiii'  had  taken  tlie  bill  under  cir- 
cumstances which  ought  to  have  excited 
the  suspicion  of  a  prudent  and  careful 
man ;  and  they  having  found  for  the  de- 
fendant, the  court  refused  to  disturb  the 
verdict.  Down  v.  Hailing,  4  B.  &  C. 
330. 

[z)  Miller  i;.  Race,  1  Burr.  452  ;  Law- 
sou  V.  Weston,  4  Esp.  56 ;  Goodman  v. 
Harvey,  6  N.  &  M.  372 :  Cone  v.  Bald- 
win, 12  Pick.  545;  Wheeler  v.  Guild, 

[222] 


20  Pick.  545 ;  Smith  v.  Mechanics  and 
Traders  Bank,  6  Louis.  Ann.  610. 

(a)  ''  Gross  negligence  may  be  evi- 
dence of  mala  Jides,  but  is  not  the  same 
thing.  We  have  shaken  off  the  last 
remnant  of  the  contrary  doctrine."  Per 
Lord  Denman,  Goodman  v.  Harvev,  4 
Ad.  &  El.  870,  6  N.  &  M.  372.  It"is  a 
question  for  the  jury  whether  the  party 
taking  the  bill  was  guilty  of  bad  faith. 
See  Cunliffe  v.  Booth,  3  Bing.  N.  C. 
821.  In  Crook  v.  Jadis,  5  Bar.  &  Ad. 
909,  Patteson,  J.,  says  : — "  I  never  could 
understand  what  is  meant  by  a  party's 
taking  a  bill  under  circumstances  which 
ought  to  have  excited  the  suspicion  of 
a  prudent  man."  But  the  authority  of 
these  cases  is  denied  in  Pringle  v.  Phil- 
lips, 5  Sandf.  157,  and  an  opposite  doc- 
trine strongly  maintained  and  decided. 

(b)  Brown  v.  Davies.  3  Term.  80 ; 
Beek  v.  Robley,  1  H.  Bl.  89,  n.  (a) ; 
Howard  v.  Ames,  3  Mete.  308 ;  Mackay 
V.  Holland,  4  Met.  69  ;  Potter  v.  Tvler, 
2  Met.  58 ;  McNeill  r.  McDonald,  1 
Hill's  So.  Car.  1  ;  Mosteller  v.  Bosh,  7 


CH.  XV.] 


INDORSEMENT. 


*215 


rule  needs,  however,  some  qualifications.  It  is  said  by  high 
authorities,  and  on  good  reason,  that  the  defence  must  arise 
from  the  note  itself,  or  the  transaction  in  which  the  note 
originated,  and  not  from  any  collateral  matter,  (c) 

*As  between  the  original  parties  to  negotiable  paper  the 
consideration  may  be  inquired  into;  and  so  it  may  as  be- 
tween indorser  and  indorsee,  {d)  But  an  action  by  an  in- 
dorsee against  the  maker  cannot  be  defeated  by  showing  that 
no  consideration  passed  to  the  maker  from  the  payee  and 
indorser.  (e)  It  is  sometimes  said  that  such  defence  is  good 
against  the  indorsee  when  the  indorsee  took  the  paper  with 
notice  of  the  want  of  consideration,  or  of  any  circumstances 
which  would  have  avoided  the  note  in  the  hands  of  the  in- 
dorser. (/)  But  the  case  of  an  accommodation  note,  whether 
made  or  indorsed  for  the  benefit  of  the  party  to  whom  the 


Ire.Eq.39;  Connery?;. Kendall, 5  Louis. 
Ann.  515  ;  Sawyer  v.  Hoovey,  lb.  153  ; 
Lancaster  Bank  v.  Woodward,  18  Penn. 
357;  Clay  v.  Cottrell,  lb.  408.  — The 
burden  of  proving,  however,  that  the 
note  was  indorsed  after  it  was  overdue, 
in  order  to  let  in  his  equities,  is  on  the 
defendant ;  for  the  presumption  is  that 
the  indorsement  was  made  at  or  soon 
after  the  date  of  the  note,  or  at  least  be- 
fore its  maturity.  Burnham  v.  Wood,  8 
N.  Hamp.  334  ;  Burham  v.  Webster,  19 
Maine,  232 ;  Ranger  v.  Gary,  1  Met. 
369  ;  Cain  v.  Spann,  1  McMiillan,  258 ; 
Washburn  v.  Ramsdell,  17  Verm.  299. 
—  And  this  burden  is  not  discharg- 
ed by  proof  that  the  note  was  transferred 
and  delivered  to  the  plaintiff  before  it 
was  dishonored,  but  was  not  indorsed 
until  afterwards.  Ranger  v.  Cary,  1 
Met.  369.  —  Suspicious  circumstances, 
however,  may  rebut  this  presumption. 
Snyder  v.  Riley,  6  Barr,  165;  Tams  v. 
Way,  13  Penn."'222. 

(c)  Burrough  v.  Moss,  10  B.  &  C. 
558 ;  Whitehead  v.  Walker,  10  M.  &  W. 
696  ;  Carruthers  v.  West,  11  Q.  B.  143  ; 
Hughes  V.  Large,  2  Barr,  103  ;  Cumber- 
land Bank  v. .  Hann,  3  Harrison,  223  ; 
Chandler  v.  Drew,  6  New  Hamp.  469  ; 
Robinson  v.  Lyman,  10  Conn.  31 ;  Brit- 
ton  V.  Bishop,  11  Verm.  70;  Robert- 
son V.  Breedlove,  7  Porter,  541  ;  Tus- 
cumbia  R.  R.  Co.  v.  Rhodes,  8  Ala.  206; 
Tinsley  v.  Beall,  2  Georgia,  134  ;  Har- 
kins  V.  Shoup,  2  Cart.  (Ind.)  342.    In 


Massachusetts  and  South  Carolina,  all 
set-ofis  between  the  original  parties  ex- 
isting at  the  time  of  the  transfer  of  the 
title  are  allowed.  Sargent  v.  Southgate, 
5  Pick.  312;  Nixon  v.  English,  3  Mc- 
Cord,  549  ;  Perry  v.  Mays,  2  Bailey, 
354;  Cain  v.  Spann,  1  McMuUan,  258. 
So  in  Maine.  Burnham  v.  Tucker,  18 
Maine,  179;  Wood  v.  Warren,  19  Maine, 
23. — In  New  York  the  point  was  con- 
sidered doubtful  in  Miner  v.  Iloyt,  4 
Hill,  193, 197.  — In  Massachusetts,  how- 
ever, equities  arising  between  the  ori- 
ginal parties  after  the  transfer  of  title, 
but  before  notice  to  the  maker,  cannot 
be  set  off  as  against  the  indorsee.  Ran- 
ger V.  Cary,  1  Met.  369  ;  Baxter  v.  Lit- 
tle, 6  Met.  7. 

{d)  De  Bras  v.  Forbes,  1  Esp.  117; 
Lickbarrow  v.  Mason,  2  Term  Rep.  71, 
per  Ashhurst,  J. ;  Abbott  v.  Hendricks, 
1  M.  &  Gr.  791;  Herrick  v.  Carman,  10 
Johns.  224;  Hill  v.  Ely,  5  Serg.  & 
Rawle,  363;  Clement  v.  Reppard,  15 
Penn.  S.  R.  Ill ;  Johnson  v.  Martinus, 
4  Hals.  144;  Hilh>.  Buckminster,  5  Pick. 
391;Bramhallf.  Beckett,  31  Maine,  205  ; 
Eisher  v.  Salmon,  1  California,  413. 

(e)  Perkins  v.  Challis,  1  New  Hamp. 
254 ;  Waterman  v.  Barratt,  4  Barring. 
311. 

(/)  Steers  v.  Lashley,  6  Term  R.  61 ; 
Wyat  V.  Bulmer,  2  Esp.  538  ;  Perkins  v. 
Challis,  1  New  Hamp.  254;  Brown  v. 
Davies,  3  Term,  80 ;  Down  v.  Hailing, 
4  B.  &  C.  330;  Ayer  v.  Hutchins,  4 

[223] 


216*  THE   LAW   OP   CONTRACTS.  [BOOK  I. 

maker  or  indorser  intends  to  lend  his  credit,  is  an  exception 
to  this  rule.  If  A.  makes  a  note  to  B.  or  his  order,  intend- 
ing to  lend  B.  his  credit,  and  gives  it  to  B.  to  raise  money  on, 
B.  cannot  sue  A.  on  that  note;  but  if  he  indorses  it  to  C, 
who  discounts  the  note  in  good  faith,  knowing  it  however  to 
be  an  accommodation  note  and  without  valuable  considera- 
tion, C.  can  nevertheless  recover  the  note  from  A.  The  maker 
may,  therefore,  have  a  defence  against  the  payee  which  he 
cannot  have  against  an  indorsee  who  has  knowledge  of  that 
defence,  (g-)  But  this  is  true  only  where  the  consideration 
paid  by  the  indorsee  may  be  regarded  as  going  to  the  maker, 
in  the  same  manner  that  it  would  if  the  payee  had  been  pro- 
misor, and  the  maker  had  signed  the  note  as  his  surety.  The 
indorsers  of  accommodation  paper  are  not,  however,  so  far 
sureties  as  to  have  a  claim  of  contribution  against  each 
other,  (h)  In  general,  accommodation  notes  or  bills  are  now 
governed  by  the  same  rules  as  negotiable  paper  for  considera- 
tion, (i) 

*On  the  ground  that  negotiable  paper  is  intended  only  for 
business  purposes,  and  has  its  peculiar  privileges  only  that  it 
may  more  perfectly  perform  this  function,  it  has  been  held 
that  one  who  takes  a  negotiable  note,  even  before  its  matu- 
rity, but  only  in  payment  of  or  as  security  for  an  antecedent 
debt,  without  giving  for  it  any  new  consideration,  does  not 
take  it  in  the  way  of  business,  and  is  not  a  bond  fide  holder; 
and  that  he  therefore  holds  the  note  subject  to  all  equitable 
defences.  This  doctrine  rests  upon  adjudications  and  opinions 
of  great  weight;  but  it  is  also  denied  by  very  high  author- 
ities ;  indeed  by  the  highest  in  this  country,  the  Supreme 
Court  of  the  United  States,  who  have  decided  that  a  preex- 


Mass.  370;  Thompson  v.  Hale,  6  Pick.  (h)  Aiken  v.  Barkley;  2  Speers,  747. 

259;  Littell  v.  Marshall,  1  Robinson's  (i)  Fentum  v.  Pocock,  5  Taunt.  192; 

Louisiana  Rep.  57.  Bank  of  Montgomery  v.  Walker,  9  S. 

(g)  Thompson  v.  Shepherd,  12  Met.  &  R.  229;  Murray  v.  Judah,  6  Cowen, 

311  ;  Smith  v.  Knox,  3  Esp.  46;  Brown  484;  Clopper  v.  Union  Bank  of  Mary- 

V.  Mott,  7  Johns.  361;  Grant  v.   EUi-  land,  7  Har.  &  Johns.   92;   Church  v. 

cott,  7  Wend.  227.     Molson  v.  Hawley,  Barlow,  9  Pick.  547;  Grant  v.  Ellicott, 

1  Blatch.  409.      And  this  is  so,  even  if  7  Wend.  227  ;  Marr  r.  Johnson,  9  Yerg. 

the  indorsee  took  the  bill  after  it  became  1 ;  Per   IT7We,  J.,  Com.  Bank  v.  Cun- 

due.    Charles  v.  Marsden,  1  Taunt.  224 ;  ningham,  24  Pick.  274.     See  also  Parks 

Carruthers  v.  West,  11  Q.  B.  143  ;  Ren-  v.  Ingram,  2  Eostcr,  283. 
wick  V.  Williams,  2  Maryl.  356. 

[224] 


CH.   XV.] 


INDORSEMENT. 


*217 


isting  debt,  of  itself,  and  without  any  streng' honing  circum- 
stances, is  of  itself  a  suflicient  consideration.  But  it  has 
nevertheless  been  held  since  that  decision,  by  courts  entitled 
to  great  respect,  that  the  doctrine  of  the  Supreme  Court  is 
erroneous  and  untenable.  It  must  be  admitted  that  the  law 
on  this  subject  is  in  a  very  unsettled  state ;  but  it  may  be 
supposed  that  in  this  country  the  authority  of  the  Supreme 
Court  will  generally  prevail.  (J) 


*  SECTION  V. 
NOTES    ON   DEMAND." 

Bills  and  notes  payable  on  demand  are  in  one  sense  always 
overdue  ;  they  are  not,  however,  so  treated  until  payment  has 
been  demanded  and  refused ;  then  they  become  like  bills  on 
time  which  have  been  dishonored  ;  and  to  bring  them  within 
this  rule  there  should  be  evidence  of  such  demand  and  refu- 


(j)  This  question  has  not  yet  receiv- 
ed a  distinct  adjudication  in  England, 
and  the  following  cases,  in  which  it  has 
incidentally  arisen,  leave  in  doubt  what 
the  inclination  of  judicial  opinion  is. 
Bramah  v  Roberts,  1  Bing.  N.  C.  469 ; 
Percival  v.  Frampton,  2  C.  M.  &  R.  180  ; 
Crofts  V.  Beale,  5  E.  L.  &  E.  408.  The 
decisions  in  this  country  have  turned 
chiefly  upon  the  question  whether  the 
transfer  be  for  a  valid  consideration.  The 
weight  of  authority  is,  that  the  transfer 
of  a  negotiable  instrument  in  payment  of 
a  debt  already  due,  or  where  upon  the 
faith  of  such  transfer  other  security  is 
relinquished,  or  indulgence  given,  is  for 
a  valid  consideration,  find  entitles  the 
holder  to  protection.  Smith  v.  Van 
Loan,  16  Wend.  659 ;  Bank  of  Salina 
V.  Babcock,  21  Wend.  499;  Bank  of 
Sandusky  v.  Scoville,  24  Wend.  115; 
Stalker  v.  McDonald,  6  Hill,  93  ;  Mar- 
shall, C.  J.,  Coolidge  v.  Pavson,  2  Wheat. 
66,  73;  Swift  v.  Tyson,  15  Peters,  15; 
Williams  v.  Little,  11  N.  H.  66 ;  Homes 
V.  Smyth,  16  Maine,  177;  Norton  v. 
Waite,  20  Maine,  175  :  Adams  v.  Smith, 
35  Maine,  324;  Brush  v.  Scribner,  11 
Conn.  388;  Bostwick  v.  Dodge,  1  Doug. 
(Mich.)  413;  lieddick  u.  Jones,  6  Ired. 


107;  Kimbro  v.  Lytle,  10  Yerger,  417: 
Woomley  v.  Lowry,  1  Humph.  470; 
Kirkpatrick  I'.  Muirfiead,  16  Penn.  123; 
Greneaux  v.  AVheeler,  6  Tex.  515.  Con- 
tra, Rosa  V.  Brotherson,  10  Wend.  85. 
But  see  Smith  v.  Van  Loan,  supra; 
Ontario  Bank  v.  Worthington,  12  Wend. 
593.  In  the  following  cases  it  is  held 
that,  where  the  transfer  is  merely  for  the 
sake  of  collateral  security,  there  is  no 
valid  consideration,  and  the  holder  is 
not  entitled  to  protection  against  the 
equities.  Bay  v.  Coddington,  5  Johns. 
Ch.  54 ;  S.  C."  20  Johns.  637  ;  Payne  v. 
Cutler,  13  Wend.  605;  Stalker  v.  Mc- 
Donald, 6  Hill,  93  ;  Clark  v.  Ely,  2  Sand. 
Ch.  166;  Mickles  v.  Colvin,  4  Barb. 
Sup.  Ct.  304 ;  Fenby  v.  Pritchard,  2 
Sand.  Sup.  Ct.  151  ;  Kirkpatrick  i;.  Muir- 
head,  16  Penn.  123;  Bertrand  v.  Bark- 
man,  8  Eng.  (Ark.)  150;  Jenness  v. 
Bean,  10  N.  H.  266  ;  Prentice  v.  Zane,  2 
Gratt.  262;  Bramhall  v.  Becket,  31 
Maine,  205;  Contra,  Swift  r.  Tyson,  16 
Peters,  15  ;  Chicopee  Bank  i\  Chapin,  8 
Met.  40;  Stevens  v.  Blanchard,  3  Cush. 
168;  Valette  v.  Mason,  1  Smith,  (Ind.) 
89:  S.  C  1  Carter,  288 ;  Pugh  t-.  Durfee, 
1  Blatch.  412. 

[225] 


-217 


THE   LAAV    OF   CONTRACTS. 


[book  I. 


sal.  But  there  is  this  difference  between  a  note  on  time  and 
a  note  on  demand  ;  a  note  on  time,  after  that  time  has  passed, 
is  certainly  dishonored,  and  an  indorsee  must  know  it.  But 
there  is  no  time  when  a  note  on  demand  must  have  been  dis- 
honored, and  none  therefore  when  an  indorsee  could  not  have 
have  received  it  without  that  knowledge.  Nevertheless  it 
seems  reasonable  to  say  that  if  a  note  which  was  payable  at 
any  day,  has  not  been  paid  for  very  many  days,  it  may  fairly 
be  presumed  to  have  been  dishonored,  and  an  indorsee  after 
this  lapse  of  time,  maybe  held  to  have  had  a  sufhcient  notice 
of  its  dishonor  ;  and  many  American  authorities  hold  this 
view,  (k)  But  it  is  still  true,  that  the  law  does  not  presume 
that  they  were  made  with  the  intention  of  immediate  demand 
and  payment.  And  where  a  note  on  demand  is  indorsed 
within  a  reasonable  time  after  its  date,  the  indorsee  has  all 
the  rights  of  an  indorsee  of  a  negotiable  note  on  time  where 
the  indorsement  was  made  before  maturity  ;  but  what  this 
reasonable  time  shall  be  must  depend  upon  the  facts  of  the 
case.     It  is  not  determined  by  any  positive  rule.  (Z)     Checks 


(k)  If  not  negotiated  until  a  long  time 
after  they,  are  made,  the}'  are  suliject  to 
all  the  equities  in  the  hands  of  an  indor- 
see, as  they  would  be  in  the  possession 
of  the  payee.  Furman  v.  Haskin,  2 
Caines.  369  ;  Hendricks  i\  Judah,  1 
Johns.  319 ;  and  two  months  and  a  half 
after  a  note  was  dated  was  held  sufficient 
to  let  in  the  equities  of  the  maker 
against  the  payee,  in  an  action  by  the 
indorsee.  Losee  v.  Dunkin,  7  Johns. 
70.  Under  different  circumstances,  a 
period  of  five  months  after  a  note  was 
dated  was  held  not  sufficient  for  this 
purpose.  Sandford  v.  Mickles,  4  Johns. 
224.  So  seven  days  has  been  held  not 
to  be  sufficient.  Thurston  v-  McKown, 
6  Mass.  428.  Ayer  v.  Hutchins,  4  Mass. 
370.  In  this  case  the  rule  concerning 
notes  payable  on  demand  was  thus  laid 
down  by  Parsotis,  C.  J.: — "A  note 
payable  on  demand  is  due  presently. 
In  this  case  the  note  had  been  due  eight 
months  before  it  was  indorsed,  a  length 
of  time  sufficient  to  induce  suspicions 
that  the  promisors  would  not  pay  it, 
and  to  cause  some  inquiry  to  be  made, 
■whether  it  had  in  fact  been  dishonored, 
or  why  payment  had  not  been  made.  If 
there  was  no   other  circumstance,  this 

[226] 


would  be  a  good  veason  to  let  the  de- 
fendants into  any  defence  which  could 
legally  be  made  by  them,  if  Page  [the 
payee  and  indorser,]  were  the  plaintiff.'' 
In  England  the  principle  that  a  note 
payable  on  demand  may  become  discre- 
dited by  mere  lapse  of  time  is  not 
adopted.  Brooks  v.  Mitchell,  9  M.  & 
W.  15  ;  Barough  v.  White,  4  B.  &  C 
325 ;  Gascoyne  v.  Smith,  1  McC.  &  Y. 
348. 

(/)  The  question  of  reasonable  time, 
within  which  a  note  due  on  demand 
must  be  indorsed  after  it  is  made,  in 
order  to  shut  out  any  equities  between 
the  maker  and  indorser,  is  purely  a 
question  of  law.  Per  ShaiL\  C.  J.,  Syl- 
vester r.  Crapo,  15  Pick.  93;  Camp  v. 
Scott  14  Verm.  387.  —  Two  days,  and 
even  five  months,  have  been  held  to  be 
within  the  limit.    Dennett  v.  Wvman, 

13  Verm.  485  ;  Sandford  v.  Mickles,  4 
Johns.  224.  So  one  month.  Ranger 
V.  Carey,  1  Met.  369.  On  the  other 
hand,  under  different  circumstances, 
eight  months,  and  two  months,  have 
been  considered  beyond  it.  American 
Bank  ;■.  Jenness,  2  Met.  288  ;  Kevins  v. 
Townshend,  6  Conn.  5  ;  Camp  i-.  Scott, 

14  Verm.  387.     See  farther,  Wethey  v. 


CH.  XV.] 


INDORSEMENT. 


*218 


on  bankers,  for  instance,  should  *  be  presented  at  once  ;  and 
the  rule  as  to  overdue  notes  is  applied  with  more  strictness 
to  them,  (m) 

A  bill  once  paid  by  the  acceptor  can  no  longer  be  nego- 
tiated ;  but  until  paid  by  him  it  is  capable  of  indefinite  nego- 
tiation, (w)  If  paid  in  part  it  may  be  indorsed  as  to  the  resi- 
due. But  it  cannot  be  indorsed  in  part ;  (o)  and  if  it  be  in- 
dorsed in  part,  and  is  afterwards  indorsed  by  the  same  in- 
dorser  to  the  same  indorsee  for  the  remaining  part,  this  is  not 
a  good  indorsement.  (/;) 

The  holder  of  a  bill  or  note  payable  to  bearer,  or  of  one 
payable  to  some  payee  or  order  and  indorsed  in  blank,  may 
transfer  the  same  by  mere  delivery,  (5^)  and  is  not  liable  upon 
it.  (qq)  But  where  one  obtains  money  on  a  bill  or  note,  by 
discount,  and  the  bill  or  note  is  forged,  if  he  did  not  indorse 
it  he  is  still  liable  to  refund  the  money  to  the  party  from 
whom  he  received  it,  on  the  ground  of  an  implied  warranty 
that  the  instrument  is  genuine ;  and  also  on  the  general  prin- 


Andrews,  3  Hill,  582;  Thompson  v. 
Hale,  6  Pick.  255  j  Mudd  v.  Harper,  1 
Maryl.  110. 

(in)  Boehm  v.  Sterling,  7  Term,  423; 
Down  r.  Hallintr,  4  B.  &  C.  3.30;  Koths- 
cliild  V.  Corney,'  9  B.  &  C.  388.  But  in 
tins  country  the  principle  is  not  con- 
sidered applicable  to  bank-notes  or  bank 
post  notes.  The  Fulton  Bank  v.  The 
Phoenix  Bank,  1  Hall,  562,  577. 

(n)  Connery  v.  Kendall,  5  Louis. 
Ann.  515  ;  Pray  v.  Maine,  7  Cush.  253. 
Per  Lord  E/lenborough,  Callow  r.  Law- 
rence, 3  M.  &  S.  97 ;  Beck  v.  Robley,  1 
H.  Bl.  89,  (h.)  —But  if  a  bill  is  paid  by 
the  drawer  it  may  afterwards  be  reissued 
by  the  drawer,  and  the  acceptor  will  be 
still  liable  to  pay  it.  Hubbard  v.  Jack- 
son, 3  C.  &  P.  134,  4  Bing.  390,  1  M.  & 
P.  11.  —  In  Callow  V.  Lawrence,  supra, 
Lord  Ellenhovough  said: — "A  bill  of  ex- 
change is  negotiable  ad  infinitum,  until 
it  has  been  paid  by  or  discharged  on 
behalf  of  the  acceptor.  If  .the  drawer 
has  paid  the  bill,  it  seems  that  he  may 
sue  the  acceptor  upon  the  bill ;  and  if, 
instead  of  suing  the  acceptor,  he  put  it 
into  circulation  upon  his  own  indorse- 
ment only,  it  docs  not  prejudice  any  of 
the  other  parties  who  have  indorsed" the 
bill  that  tlic  holder  should  be  at  liberty 


to  sue  the  acceptor.  The  case  would  be 
different  if  the  circulation  of  the  bill 
would  have  the  effect  of  prejudicing  any 
of  the  indorsers." 

(o)  Hawkins  v.  Cardy,  1  Ld.  Raym. 
360.  And  although  an  indorser  has 
paid  part  of  a  bill  to  the  indorsee,  the 
iaiter  may  still  recover  the  whole  amount 
of  the  bill  against  the  drawer.  Johnson 
V.  Kennion,  2  VVils.  262. 

(p)  Hughes  V.  Kiddell,  2  Bay,  324. 
This  was  an  action  against  the  indorser 
of  a  note.  By  one  indorsement  he  liad 
assigned  part  of  the  sum  mentioned  in 
the  note,  and  the  residue  by  another  in- 
dorsement. The  court  held  that  the 
action  could  not  be  supported,  on  the 
ground  that  an  indorsement  for  part  of 
a  note  or  bill  is  bad ;  and  if  so  then  two 
vicious  indorsements  could  never  con- 
stitute a  good  one.  See  also.  Hawkins 
V.  Cardy,  1  Ld.  Raym.  360,  Carth.  466  ; 
Johnson  v.  Kennion,  2  Wils.  262,  per 
Gould,  J. 

(q)  Davis  V.  Lane,  8  New  Hamp. 
224  ;  Wilbour  r.  Turner,  5  Pick.  526  ; 
Dole  V.  Weeks,  4  Mass.  451. 

(77)  Camidge  v  Allcnby,  6  B.  &  Cr. 
373.  See  also  Rogers  v.  Langford,  1 
Cr.  &  M.  637. 

[227] 


219*  THE   LAW   OF    CONTRACTS.  [BOOK   I. 

ciple,  that  one  who  pays  money  without  consideration  may 
recover  it  back,  (r) 

*  If  a  note  be  made  payable  on  its  face  or  by  indorsement  to 
a  party  or  his  order,  that  party  can  transfer  the  note  in  full 
property  only  by  his  indorsement;  and  when  he  indorses  it 
he  makes  himself  liable  to  pay  it  if  those  who  ought  to  have 
paid  it  to  him,  had  he  continued  to  hold  it,  fail  to  pay  it  to 
the  party  to  whom  he  orders  it  paid.  His  indorsement  is,  in 
itself,  only  an  order  on  them  to  pay  the  bill  or  note ;  but  the 
law  annexes  to  this  order  a  promise  on  his  part  to  pay  the 
bill  or  note  if  they  do  not.  He  may  guard  against  this  by 
indorsing  it  with  the  words  "  without  recourse,"  which  mean, 
by  usage,  that  the  holder  is  not  to  have,  in  any  event,  re- 
course to  the  indorser.  (s)  And  the  same  purpose  will  be 
answered  if  he  uses  any  other  words  distinctly  expressive  of 
the  same  meaning.  But  without  such  words  he  is  liable  for 
the  whole  amount,  (t) 

It  is  this  peculiarity  which  gives  their  great  value  and  uti- 
lity to  bills  and  notes  as  instruments  of  commerce  and  busi- 
ness. And  this  liability  is  strictly  defined  and  very  carefully 
watched  and  protected.  It  is  a  conditional  liability  only. 
All  the  previous  parties  must  have  the  bill  or  note  presented 
to  them,  and  payment  demanded  ;  and  notice  of  the  demand 
and  non-payment  must  be  given  to  all.  And  this  requirement 
is  very  precise  as  to  time,  and  somewhat  so  as  to  form;  as  we 
shall  presently  see. 

It  has  been  said  that  every  party  so  indorsing  a  bill  or  note 


(r)  Jones  v.  Ryde,  1  Marsh.  157,  5  Funk,  8  Barr,  468.     Such  an  indorse- 

Taunt.  489 ;  Bruce  v.  Bruce,  1  Marsh,  ment  transfers  the  indorscr's  whole  in- 

165,   5    Taunt.   495  ;    Eagle   Bank   v.  terest  therein,  but  taken  with  other  cir- 

Smith,   5    Conn.   71;     Canal  Bank  i'.  cuinstances,   it  tench  to  show   that  the 

Bank  of  Albany,  1  Hill,  87.     Sed,aliter,  note  was   not  indorsed  for   value,  and 

if  the  bill-  or  note  is  discounted  by  the  therefore  to  open  to  the  maker  the  same 

banker  of  the  acceptor  or  maker.   Smith  defences  against  the  indorsee  which  he 

y.  Mercer,  6  Taunt.  76.     The  ruling  of  could   have   made   against   the    payee. 

AhbolU  C.  J.,  in  Fuller  v.  Smith,  Ry.  &  Richardson  U.Lincoln,  5  Met.  201. 

Mood.  49,  is  not  consistent  with  Smith  (0    Goupy  r.  Harden,  7   Taunt.  159. 

V.  Mercer.  In  this  case  it  was  held,  that  an  agent 

(s)  Rice  V.  Stearns,  3  Mass.  225  ;  Up-  purchasing  foreign  bills  for  his  princi- 

ham  V.  Prince,  12  Mass.  14;  Waite  v.  pal,  and  indorsing  them  to  him  without 

Foster,  33  Maine,  424. — And  an  indorse-  qualification,  is  liable  to   the   principal 

ment  of  a  note  without  recourse  passes  on  his  indorsement,  however  small  his 

it   with  all   its  negotiable  qualities,  as  commission, 
much  as  if  indorsed  in  blank.    Epler  v. 
[228] 


CH.    XV.]  INDORSEMENT.  *220 

may  be  regarded  as  making  a  new  bill  or  note  ;  (u)  this, 
though  true  in  general,  may  not  be  precisely  and  exactly  the 
rule  of  law;  still  important  consequences  sometimes  flow 
•from  it.  Thus  an  acceptor  is  bound,  although  the  name  of 
the  drawer  is  forged,  and  an  indorser,  although  the  maker's 
name  is  forged  ;  for  by  acceptance,  and  by  each  indorsement, 
a  new  contract  is  formed,  (v)  And  the  same  rule  would 
apply  to  a  party  who  intervenes  and  accepts  or  pays  supra 
protest,  (vv)  But  a  distinction  has  been  taken  between  a  bill 
with  the  signature  forged,  and  one  of  which  the  whole  body 
is  forged,  holding  that  the  implied  admission  or  warranty  of 
the  acceptor  does  not  apply  in  this  latter  case,  (iv)  So,  if  a 
bank  pays  a  forged  check,  it  bears  the  loss,  (x)  And  if  a 
bank  receive  payment  of  an  amount  due  to  it  in  its  own 
bills,  which  turn  out  to  be  forged,  it  is  bound,  (i/)  But,  in 
general,  payment  of  a  debt  in  forged  bills,  both  parties  being 
innocent,  is  no  payment,  nor  is  a  bank  bound  by  discounting 
a  forged  note,  (z)  But  the  loser  by  forged  paper  can  re- 
cover it  back  only  by  showing  proper  diligence  to  detect 
the  forgery,  and  to  give  notice  to  those  who  might  be  affected 
by  it.  (a) 

Whether  payment  of  a  debt  in  bills  of  an  insolvent  bank, 
both  parties  being  ignorant  of  the  fact,  is  payment,  seems  not 
to  be  quite  settled.  It  must  depend  upon  the  question  (which 
in  each  case  may  be  affected  by  its  peculiar  circumstances,) 

(u)  Chittj'  &  Hulme  on  Bills,  p.  241,  and  indorse.     Drayton  v.  Dale,  2  B.  & 

and   cases    cited.      See  also   Pease   v.  C.  299  ;  3  D.  &  R.  534,  per  Bai/ley,  J. ; 

Turner,  3  How.  (Miss.) 375.  —In  Gwin-  Smith  v.  Marsack,  6  C  B.  486." 

nell   V.  Herbert,  5   Ad.  &  El.  436,  it  is  (ii')  Goddard  r.  Merchants  Bank,  4 

said  that  the  indorser  of  a  promissory  Comst.  147. 

note  docs  not  stand  in  the  situation  of  (w)    Bank   of    Commerce   v.   Union 

maker  relatively  to  his  indorsee,  and  the  Bank,  3  Comst.  230.     But  see  Hall  v. 

latter  cannot   declare   against   him   as  Fuller,  5  B.  &  C.  750. 

maker.  {x)  Levy  v.  Bank  of  United  States,  1 

{v)   Wilkinson  v.  Lutwidge,    1    Str.  Binn.  27  fBank  of  St.  Albans  r.  F.  & 

648  ;  Jeuys  v.  Fawler,  2  Str.  946  ;  Price  M.  Bank,  10  Verm.  141. 

V.  Neale,  3  Burr.  1354 ;  Smith  v.  dies-  (.y)   United  States   Bank  v.  Bank  of 

ter,  1  T.  R.  655,  per  Buller,  J. ;  Bass  v.  Georgia,  10  Wheat.  333. 

Clive,  4  M.   &  S>.  15,  per  ba/npier.  J.;  (z)    Stedman   v.    Gooch,    1   E«p.  5; 

Smith  V.  Mercer,  6  Taunt.  76;  Robin-  Markle  r.  Hatfield,  2  Johns.  455  ;  Young 

son  V.  Reynolds,  2  Q.  B.  196;  Canal  i'.  Adams,  6  Mass.  182 ;  Eagle  Bank  v. 

Bank  v.  Bank  of  Albany,  1   Hill,  287  ;  Smith.  5  Conn.  71. 

Goddard  i'.  Merchants  Bank,  4  Corns.  («)  Gloucester  Bank  v.  Salem  Bank, 

147;  Harndtonr. Pearson,!  Cart.  (Ind.)  17   Mass.  33  ;  Canal  Bank  y.  Bank  of 

540.     So  also  the  acceptor  undertakes  Albany.  s!/;;ra  ;  Pope  v.  IS'aDcc,  1  Minor, 

that  the  drawer  has  the  capacity  to  draw  (Ala.  Rep.)  299. 

VOL.   I.  20  [229] 


221*  THE   LAW   OP   CONTRACTS.  [BOOK  I. 

whether  the  payee  takes  the  bills  as  absolute  payment  at  his 
own  risk,  or  takes  them  only  as  conditional  payment,  he  to 
be  bound  only  to  use  due  diligence  in  collecting  the  bills,  and 
if  he  fails,  the  payment  be  null.  Perhaps  the  weight  of 
authority,  as  well  as  of  reason,  is  in  favor  of  this  last  view 
predominating  where  there  is  no  sufficient  evidence  of  a  con- 
trary intention,  (b) 

*The  liability  of  an  indorser  may  be  considered,  first  as  it 
depends  on  the  demand  of  payment,  and  then  as  to  notice  of 
non-payment,  and  the  proceedings  necessary  thereon.  But 
bills  of  exchange  must  also,  in  some  instances,  be  presented 
for  acceptance,  when  they  are  made  payable  at  a  certain  time 
after  sight,  in  order  to  fix  the  day  of  their  maturity.  If  pay- 
able in  so  many  days  after  date  this  is  not  necessary.  But 
the  holder  may  present  any  bill  for  acceptance,  at  any  time, 
even  the  last  day  before  it  is  due  ;  and  if  not  accepted  may 
sue  the  drawer  and  indorser.  It  is  prudent  and  usual  to  pre- 
sent a  bill  for  acceptance  soon  after  it  is  received,  as  the 
holder  thereby  acquires  the  security  of  the  acceptor,  (c) 


SECTION  VI. 
OF   PRESENTMENT   FOR   ACCEPTANCE. 

Presentment  for  acceptance  should  be  made  by  the  holder 
or  his  authorized  agent  to  the  drawee  or  his  authorized 
agent,  (f/)  during  the  usual  hours  of  business,  (e)     And  the 

(6)  Ellis  V.  Wild,  6  Mass.  321 ;  On-  reasonable  time  ;  and  that  is  a  question 

tario  Bank  v.  Lightbodv,  11  Wend.  9,  for  the  jury  to  decide  from  the  circum- 

13  Wend.  101  ;  "Wainwright  I'.  Webster,  stances  of  each  case.     See  also  Fry  u. 

11  Verm.  576  ;  Gilman  v.  Peck,  Id.  516  ;  Hill,  7  Taunt.  397. — No  cause  of  action 

Fogg  r.   Sawyer,  9  New  Hamp.  365  ;  arises  upon  a  bill  payable  at  sight,  until 

Frontier  Bank  y.  Morse,  22  Maine,  88;  it  is  presented.     Holmes  i>.  Kerrison,  2 

Timmis  v.  Gibbins,  14  E.  L.  &  E.  64,  Taunt.  323 ;  Thorpe  v.  Booth,  Ky.  & 

and  note ;    Contra,  Lowrey  v.  Murrell,  2  Mo.  388. 

Porter,  (Ala.)  280;  Scruggs  v.  Gass,  8  (d)  Cheek  v.  Eoper,  5  Esp.  175.     It 

Yerg.  175 ;  Bayard  v.  Shunk,  1  W.  &  is  not  sufficient  to  call  at  the  residence 

S.  92.  of  the  drawee  and  present  the  bill  to 

(c)  Muilman  v.  D'Equino,  2  H.  Bl.  some  person,  who  is  unknov.-n  to  the 

565.     It  was  here  held  that  there  is  no  party  calling.     lb. 

fixed  time  within  which  a  bill  payable  (e)  Elford   v.  Teed,    1    M.  &  S.  28 ; 

at  sight,  or  a  certain  time  after,  shall  be  Church  v.  Clark,  21  Pick.  310  ;  Bank  of 

presented  to  the  drawee.    It  must  be  a  United  States  v.  Carneal,  2  Peters,  543 ; 

[230] 


CH.  XV.] 


INDORSEMENT. 


222 


drawee  has  until  the  next  day  to  determine  whether  he  will 
accept,  but  may  answer  at  once,  (ee)  And  a  bill  may  be  in 
some  sort  accepted  before  it  is  drawn,  for  a  written  promise 
to  accept  a  certain  bill  hereafter  to  be  made  is  construed  as 
an  acceptance,  if  precisely  that  bill  is  drawn  within  a  reason- 
able time  after  such  promise.  (/)  The  acceptance  must 
also  be  absolute,  and  not  in  any  respect  differing  from  the 
terms  of  the  bill.  If  any  other  be  given,  the  holder  may 
assent  and  so  bind  the  acceptor,  but  must  give  notice  as  of 
non-acceptance  to  other  parties,  in  order  to  hold  them,  (ff) 
The  usual  way  of  accepting  is  by  writing  the  word  "  ac- 
cepted "  on  the  face  of  the  bill,  and  signing  the  acceptor's 
name ;  but  there  is  no  precise  formula  or  method  which  is 
necessary  to  constitute  a  good  acceptance.  It  seems  to  be 
enough  if  it  is  substantively  a  distinct  promise  to  pay  the 
bill  according  to  its  terms,  whether  it  be  in  writing  upon  the 
Dili  or  upon  a  separate  paper,  or  by  parol,  (g) 


Harrison  v.  Crowder,  6  Smedes  &  Mar. 
464 ;  Parker  v.  Gordon,  7  East,  383. — 
And  presentment  after  banking  hours, 
and  an  authorized  person  then  answer- 
ing, has  been  held  sufficient.  Garnett 
V.  Woodcock,  1  Stark.  475.  A  present- 
ment, however,  at  eight  o'clock  in  the 
evening,  at  the  drawee's  residence,  has 
been  held  at  a  reasonable  hour.  Bar- 
clays. Bailey,  2  Camp.  527. — But  eleven 
or  twelve  at  night  has  been  held  other- 
wise. Dana  r.  Sawyer,  22  Maine,  244. 
So  of  a  demand  at  eight  in  the  morning. 
Lunt  V.  Adams,  17  Maine,  230.  See 
Flint  V.  Kogcrs,  15  Maine,  67;  Com- 
mercial Bank  v.  Hamer,  7  How.  (Miss.) 
448  ;  Cohea  v.  Hunt,  2  Smedes  &  Mar. 
227. — The  rule  is  in  all  cases  that  the 
presentment  should  be  at  a  reasonable 
time ;  and  when  the  paper  is  due  from 
or  at  a  bank,  it  should,  as  we  have  al- 
ready said,  as  a  general  rule,  be  pre- 
sented within  banking  hours.  But  in 
other  cases  the  period  ranges  through 
the  whole  day,  down  to  the  time  of  go- 
ing to  bed.  Cayuga  Bank  v.  Hunt,  2 
Hill,  635. 

(ee)  Montgomery  County  Bank  v. 
Albany  City  Bank,  8  Barb.  399. 

(/)  Pillans  V.  Van  ISIierop,  3  Burr. 
1670  ;  Coolidge  v.  Payson,  2  Wheaton, 
66 ;  Wilson  v.  Clements,  3  Mass.  1  ; 
Goodrich  v.  Gordon,  15  Johns.  6;  Par- 
ker V.  Greele,  2  Wend.  545  ;  Kendrick 


^.'Campbell,  1  Bailey,  522  ;  Carnegie  v. 
Morrison,  2  Met.  38f ;  Storer  v.  Logan, 
9  Mass.  55 ;  McEvers  v.  Mason,  10 
Johns.  207  ;  Schimmelpennich  v.  Bay- 
ard, 1  Pet,  264 ;  Boyce  v.  Edwards,  4 
Pet.  121  ;  Williams  v.  Winans,  2  Green, 
339  ;  Bayard  v.  Lathy,  2  McLean,  462  ; 
Vance  v.  Ward,  2  Dana,  95 ;  Keed  v. 
Marsh,  5  B.  Monroe,  8 ;  How  land  v. 
Carson,  15  Penn.  453;  Beach  v.  State 
Bank,  2  Cart.  (Ind.)  488  ;  Cassel  v. 
Dows,  2  Blatch.  335.  —  But  this  rule 
is  applicable  only  to  bills  payable  on 
demand,  or  at  a  fixed  time  after  date, 
and  not  to  bills  payable  at  or  after  sight ; 
for  it  is  obvious  that  to  constitute  an 
acceptance  in  the  latter  cases  a  present- 
ment is  indispensable,  since  the  time 
that  the  bill  is  to  run  cannot  otherwise 
be  ascertained.  Story  on  Bills  of  Exch. 
§  249  ;  Wildes  v.  Savage,  1  Story,  22  ; 
Russell  V.  Wiggin,  2  Story,  213. 

(  (f)  Walker  v.  Bank  of  State  of  New 
York,  13  Barb.  636  ;  Lyon  v.  Sundius, 
1  Camp.  423;  Russell  v.  Phillips,  14 
Q.  B.891. 

(v)  Edson  V.  Puller,  2  Foster,  183; 
AVynne  v.  Raikes,  5  East,  514  ;  Fair- 
lee  V.  Herring,  3  Bing.  625.  In  this 
case,  bills  having  been  drawn  on  the  de- 
fendants by  their  agent,  and  with  their 
authority,  in  respect  of  a  mine  which 
they  afterwards  transferred  to  A.,  they 
requested   A.   to  place  funds   in   their 

[231] 


223*  THE  LAW  OF   CONTRACTS.  [BOOK  I. 

SECTION  VII. 

OF   PRESENTMENT   FOR   PAYMENT. 

A  bill  or  note  must  be  presented  for  payment  at  its  ma- 
turity, or  the  indorsers  are  not  held.  They  guarantee  its  pay- 
*ment,  not  by  express  words,  but  by  operation  of  law.  And 
for  their  protection  the  law  annexes  to  their  liability,  as  a  con- 
dition, that  reasonable  efforts  shall  be  made  to  procure  the 
payment  from  those  bound  to  pay  before  them,  and  also  that 
they  shall  have  reasonable  notice  of  a  refusal  to  pay,  that 
they  may  have  an  opportunity  to  indemnify  themselves.  The 
justice  of  this  is  obvious.  A  holder  of  a  note,  with  a  good 
indorser,  might  be  very  indifferent  as  to  the  payment  by  the 
promisor  or  an  earlier  indorser,  if  he  knew  that  he  could  cer- 
tainly collect  the  amount  from  the  indorser  on  whom  he  re- 
lied; therefore  the  very  liability  of  this  indorser  is  made  to 
rest  upon  the  efforts  of  the  holder  to  obtain  the  money  from 
the  prior  parties.  Again  ;  each  indorser  transfers  by  indorse- 
ment a  debt  due  to  himself,  and  if  by  the  guaranty  which 
springs  from  his  indorsement  he  has  to  pay  this  debt  to  an- 
other, he  is  entitled  to  all  the  knowledge  which  will  enable 
him  to  secure  a  payment  of  this  debt  to  himself.  The  rules, 
and  the  exceptions  to  the  rules,  in  relation  to  demand  of  pay- 
ment and  notice  of  non-payment,  will  be  found  to  rest  upon 
these  principles. 

Generally,  the  question  of  reasonable  time,  reasonable  dili- 

hands  to  meet  the  bills  when  due,  saj--  were   liable   to    an    indorsee,    between 

ing,  "  it  would  be  unpleasant  to  have  whom  and  A.  there  was  no  privity,  and 

bills  drawn  on  them   paid   by  another  that   the    indorsee   was   not   precluded 

party."     A.  placed   funds  accordingly,  from  suing,  by  having  made  a  protest 

but  when  the  bills  were  left  with  defend-  in    ignorance  of  this   acceptance. —  In 

ants  for  acceptance,  no  acceptance  was  Ward  v.  Allen,  2  Met.  53,  a  bill  was 

written   on   them.     A's   agent   having  read   to   the   drawee,   who  said  it  was 

complained  to  one  of  the  defendants  on  correct  and  should  be  paid  ;  and  this 

the  subject,  he  said,  "  What,  not  accept-  was  treated  as  a  sufficient  acceptance, 

ed  ?     We    have   had   the   money,    and  See   Parkhurst  v.  Dickerson,  21    Pick, 

they  ought  to  be  paid,  but  I  do  "not  in-  307  ;  Luff  v.  Pope,  5  Hill,  413  ;  Walker 

terfere  in  this  business,  you  should  see  v.  Lide,  1  Rich.  249  ;  Walker  v.  Bank 

my  partner."     And  it  was  holden  that  of  State  of  New  York,  13  Barb.  638; 

all  this  amounted  to  a  parol  acceptance  Lewis  v.  Kramer,  3  Maryl.  2G5  :  Orear 

of  the  bills,  on  which  the  defendants  i'.  McDonald,  9  Gill,  350. 

[232] 


CH.  XV.] 


INDORSEMENT. 


^224 


gence,  and  reasonable  notice,  is  open  to  the  circumstances  of 
every  case,  and  is  determined  by  a  reference  to  them.  But 
in  resfard  to  bills  and  notes  the  law  merchant  has  defined  all 
of  these  with  great  exactness. 

The  general  rule  may  be  said  to  be,  that  the  drawer  and 
indorsers  of  a  bill  and  the  indorsers  of  a  note  are  discharged 
from  their  liability,  unless  payment  of  the  bill  or  note  be  de- 
manded from  the  party  bound  to  pay  it,  on  the  day  on  which 
it  falls  due.  (h)  And  if  the  holder  neglects  to  make  such  de- 
*  mand,  he  not  only  loses  the  guaranty  of  subsequent  parties, 
but  "all  right  to  recover  for  the  consideration  or  debt  for  which 
the  bill  or  note  was  given,  (i) 

Let  us  look  at  the  exceptions  to  this  rule  requiring  such 
presentment  of  a  bill  or  note.  Bankruptcy  or  insolvency, 
however  certain  or  however  manifested,  is  not  one.  (j) 
Though  the  bank  or  shop  be  shut,  presentment  there  or  to 
the  parties  personally  must  still  be  made,  (k)     Nor  will  the 


(A)  Field  v.  Nickerson,  13  Mass.  131  ; 
Martin  v.  Winslow,  2  Mason,  241  ;  Sice 
V.  Cunningham,  1  Cowen,  397  ;  Mont- 
gomery County  Banlv  v.  Albany  City 
Bank,  8  Barb.  396  ;  Holbrook  v.  Al- 
len, 4  Florida,  87  ;  Robinson  v.  Blen, 
20  Maine,  109  ;  Magruder  v.  Union 
Bank,  3  Peters,  87  ;  Juniata  Bank  v. 
Hale,  16  Serg.  &  Rawle,  157.  If  the 
bill  or  note  is  payable  at  a  time  certain, 
it  must  be  presented  on  tlie  last  day  of 
grace ;  and  a  demand  either  before  or 
after  tliat  day  is  insufficient  to  charge 
the  indorser.  Ibid  ;  Howe  i\  Bradley, 
19  Maine,  31  ;  Leavitt  v.  Simes,  3  New 
Hamp.  14;  Farmers  Bank  v.  Duvall, 
7  G.  &  J.  78;  Piatt  v.  Eads,  1  Blackf. 
81  ;  Etting  v.  Schuylkill  Bank,  2  Barr, 
355. 

(i)  Bridges  v.  Berry,  3  Taunton,  130  ; 
Camidgc  v.  Allenby,  6  B.  &  C.  373. 
This  was  an  action  for  the  price  of 
goods.  It  appeared  that  the  same  were 
sold  at  York  on  Saturday  the  10th  De- 
cember, 1825,  and  on  the  same  day,  at 
three  o'clock  in  the  afternoon,  the  ven- 
dee delivered  to  the  vendor,  as  and  for 
a  payment  of  the  price,  certain  promis- 
sory notes  of  tlie  bank  of  D.  &  Co.  at 
Iluddersfield,  payable  on  demand*  to 
bearer.  D.  &  Co.  stopped  payment  on 
the  same  day  at  eleven  o'clock  in  the 
morning,  and  never  afterwards  resumed 

20* 


their  payments  ;  but  neither  of  the  par- 
ties knew  of  the  stoppage,  or  of  the 
insolvency  of  D.  &  Co.  The  vendor 
never  circulated  the  notes,  or  presented 
them  to  the  bankers  for  payment ;  but 
on  Saturday  the  17th  he  required  the 
vendee  to  take  back  the  notes,  and  to 
pay  him  the  amount,  which  the  latter 
refused.  Held,  under  these  circumstan- 
ces, that  the  vendor  of  the  goods  was 
guilty  of  laches,  and  had  thereby  made 
the  notes  his  own,  and,  consequently, 
that  they  operated  as  a  satisfaction  of 
the  debt. 

{j)  Eussell  V.  LangstafFe,  Doug.  515  ; 
Ex  parte  Johnston,  3  Dea.  &  Ch.  433  ; 
Bowes  V.  Howe,  5  Taunt.  30  ;  Gower  v. 
Moore,  25  Maine,  16;  Ireland  v.  Kip, 
Anthon,  142;  Shaw  v.  Reed,  12  Pick. 
132  ;  Groton  v.  Dalheim,  6  Greenl.  476 ; 
Holland  v.  Turner,  10  Conn.  308 ; 
Orear  v.  McDonald,  9  Gill,  350.  And 
although  the  indorsers,  at  the  time  of 
indorsement,  had  reason  to  believe,,  and 
did  believe,  that  the  maker  would  not 
pay,  this  does  not  dispense  with  the 
necessity  of  due  notice  to  them  of  such 
maker's  default.  Denny  v.  Palmer,  5 
Ircd.  610;  Oliver  v.  Munday,  2  Pen- 
nington R.  982 ;  AUwogd  v.  Hascldon, 
2  Bailey,  457. 

(A.)  Bowes  V.  Howe,  5  Taunt.  30,  re- 
versing the  decision  of  the  King's  Bench 

[233] 


225* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


death  of  the  party  prevent  the  necessity  of  demanding  pay- 
ment of  his  personal  representatives,  if  he  have  any,  (/)  and 
if  not,  at  his  house.  But  delay  or  onnission  to  demand  pay- 
ment does  not  discharge  the  drawer  of  a  bill,  if  the  drawee 
had  in  his  hands  no  effects  of  the  drawer,  at  any  time  be- 
tween the  drawing  of  the  bill  and  its  maturity,  and  had  no 
right  on  other  ground  to  expect  the  payment  of  the  bill,  (m) 
for  the  drawer  had  then  no  right  to  draw  the  bill,  and  there- 
*fore  no  right  to  demand  or  notice,  because  he  could  not  profit 
by  it  to  get  payment  to  himself  of  the  debt  from  the  drawee, 
there  being  no  such  debt.  So  also  if  the  transaction  between 
the  drawer  and  the  drawee  was  illegal,  (n)  But  such  pre- 
sentment should  still  be  made  to  hold  the  subsequent  par- 
ties, (o)  The  discharge  from  liability  arising  from  such  delay 
or  omission  may  be  waived,  by  an  express  promise  to  pay 
made  afte?'  such  discharge,  or  by  a  payment  in  part,  from 
which  the  law  infers  an  acknowledgment  of  liability  ;  but  not 
by  a  promise  made  before  such  delay  or  omission,  (p)     If  the 


in  the  same  case,  16  East,  112.  And 
see  Camidge  v.  Allenby,  6  B.  &  C.  373. 
If  the  maker  is  absent  on  a  voyage  at 
sea,  having  a  domicil  within  the  State, 
payment  mnst  be  demanded  there. 
Whittier  v.  Groffam,  3  Greenl.  82  ; 
Dennie  v.  Walker,  7  New  Hamp.  199. 
See  Ogden  v.  Cowley,  2  Johns.  274  ; 
Galpin  v.  Hard,  3  McCord,  394  ;  Ellis 
V.  Commercial  Bank,  7  How.  (Miss.) 
294. 

(?)  Gower  v.  Moore,  25  Maine,  16; 
Landrv  v.  Stansbury,  10  Louis.  E.  484. 

()ft)"De  Berdt  u. "Atkinson,  2  H.  Bl. 
336  ;  Terry  v.  Parker,  6  Ad.  &  El.  502  ; 
Kinsley  v.  Eobinson,  21  Pick.  327  ; 
Eoard  v.  Womack,  2  Ala.  368;  Wol- 
lenweber  r.  Ketterlinus,  17  Pcnn.  389  ; 
Allen  r.  Smith's  Admr.  4  Harring.  234  ; 
Oliver  v.  Bank  of  Tenn.  11  Humph. 
74 ;  Orear  v.  McDonald,  9  Gill,  350. 
See  also  Fitch  v.  Kedding,  4  Sandf. 
130.  But  where  a  note  is  signed  by 
one  person  as  a  principal,  and  others  as 
sureties,  it  is  not  a  suffi(uent  excuse  to 
show  that  the  sin-etics  had  no  funds  in 
the  place  of  payment ;  for  it  was  the 
duty  of  the  maker,  and  not  of  the  sure- 
ties, to  provide  for  the  pavment.  Fort 
V.  Cortes,  14  Louis.  R.  ISO. 

(n)  Copp  V.  McDugall,  9  Mass.  1. 
Wliere  the  indorsee  of  a  negotiable  pro- 

[234] 


missory  note  failed  of  recovering  against 
the  promisor,  because  the  original  con- 
tract M'as  usurious,  the  indorscr,  who 
was  the  original  payee,  was  held  liable, 
without  notice,  for  the  amount  due  by 
the  note,  but  not  for  the  costs  of  the  in- 
dorsee's action  against  the  promisor. 

(o)  Wilkes  V.  Jacks,  Peake's  N.  P. 
Cas.  202 ;  Leach  v.  Hewitt,  4  Taunt. 
730;  Ramdulollday  v.  Darieux,4  Wash. 
Cir.  Rep.  61. 

(/;)  That  a  payment  of  part  is  waiver 
of  a  non-demand  on  the  maker,  see 
Vaughan  v.  Fuller,  Strange,  1246;  Ta}-- 
lor  V.  Jones,  2  Camp.  106 ;  I^undie  v. 
Robertson,  7  East,  231  :  Haddock  v. 
Bury,  Id.  236,  note  ;  Hodge  v.  Fillis,  3 
Camp.  464  ;  Hopley  v.  Dufrcsne,  15 
East.  275.  —  That  a  new  promise  to  pay, 
after  notice  of  the  neglect  to  demand  of 
the  maker,  is  a  waiver,  see  Sussex  Bank 
V.  Baldwin,  2  Harrison,  487  ;  Seelcy  v. 
Bisbee,  2  Verm.  105;  Ladd  v.  Kenncy. 
2  Kew  Hamp.  340  ;  Rogers  v.  Hackett. 
1  Foster,  100;  Breed  v.  Hillhouse,  7 
Conn.  523. — It  has  been  decided  that  it 
must  be  shown  affirraalively,  however, 
that  the  indorser,  when  he  made  the  pro- 
mis!;,  knew  that  no  demand  had  been 
made  on  the  maker.  Otis  v.  Hussey,  3 
New  Hamp.  346 ;  New  Orleans  Rail- 
road Co.  V.  Mills,  2  Louis.  Ann.  824; 


CH.  XV.] 


INDORSEMENT. 


*226 


party  who  should  pay  the  note  has  absconded,  or  has  no 
domicil  or  regular  place  of  business,  and  cannot  be  found  by 
reasonable  endeavors,  payment  need  not  be  demanded  of  him, 
because  it  would  be  of  no  utility  to  a  subsequent  party ;  (q) 
*  still,  notice  of  these  facts  should  be  given.  And  it  has  been 
held  that  where  demand  of  payment  was  delayed  by  political 
disturbances,  or  by  any  invincible  obstacle,  it  was  enough  if 
the  demand  was  made  as  soon  as  possible  after  the  obstruc- 
tion ceased,  (r) 

Where  the  bill  or  note  is  made  payable  at  a  particular  place 
specified  in  the  body  of  it,  it  seems  to  be  the  rule  in  England 
that  it  must  be  presented  for  that  purpose  at  that  place,  for 
the  place  is  part  of  the  contract;  (s)but,  in  this  country,  nei- 
ther such  bill  or  note,  nor  a  bill  drawn  payable  generally,  but 
accepted  payable  at  a  specified  place,  need  be  presented  at 


Eobinson  v.  Day,  7  Louis.  Ann.  201. 
But  it  is  said  in  Bruce  v.  Lytle,  13  Barb. 
163,  that  where  there  is  an  express  pro- 
mise demand  and  notice  will  be  pre- 
sumed unless  the  contrary  be  shown. — 
So  if  an  indorser  take  full  security  from 
the  maker  to  secure  him  against  his 
liability  to  pay  the  note,  this  excuses  a 
demand  on  the  maker,  and  notice  there- 
of to  the  indorser.  Durham  v.  Price,  5 
Yerger,  300  ;  Duvall  v.  Farmers  Bank, 
9  G.  &  J.  31 ;  Mead  v.  Small,  2  Greenl. 
207  ;  Marshall  v.  Mitchell,  35  Maine, 
223;  Prentiss  i;.  Danielson,  .5  Conn.  175; 
Perry  v.  Green,  4  Harrison,  61  ;  INIecha- 
nics  Bank  v.  Griswold,  7  Wend.  165; 
Coddington  v.  Davis,  3  Den.  16;  Bond 
V.  Farnham,  5  Mass.  170;  Stephenson 
V.  Primrose,  8  Porter,  155. — AUlcr,  of 
only  part  security.  Spencer  v.  Harvey, 
17  Wend.  489;  Bruce  v.  Lytle,  13  Barb. 
163;  Burroughs?'.  Hanegan,  1  McLean, 
309;  Kyle  v.  Green,  14  Ohio,  495; 
Woodman  v.  Eastman,  10  New  Hamp. 
359.  —  And  the  whole  doctrine  itself  is 
subject  to  many  qualifications ;  and  in 
Kramer  v.  Sandford,  4  Watts  &  Serg. 
328,  where  the  American  authorities  are 
fully  reviewed,  Gibson,  C.  J.,  observed 
that  this  doctrine  of  waiver  in  consider- 
ation of  security  had  no  footing  in  West- 
minster Hall. 

(7)  Putnam  v.  Sullivan,  4  Mass.  45  ; 
Gilbert  v.  Dennis,  3  Met.  495,  499,  per 
S/inw,  C.  J. ;  Duncan  v.  McCullough,  4 
S.  &  R.  480 ;  Lehman  v.  Jones,  1  Watts 
&  Serg.  126;  Wheeler  v.  Field,  6  Met. 


290 ;  Gist  v.  Lybrand,  3  Ohio,  307  ; 
Central  Bank  v.  Allen,  16  Maine,  41  ; 
Bruce  v.  Lytle,  13  Barb.  163  ;  Nailor  v. 
Bowie,  3  Maryl.  251.— So  when  the 
maker  of  the  note  was  a  seafaring  man, 
having  no  residence  or  place  of  business 
in  the  State,  and  was  at  sea  when  pay- 
ment was  due,  no  demand  was  held  re- 
quisite. Moore  v.  Coffield,  1  Devereux, 
247.  —  But  where  the  holder  was  told, 
at  the  time  of  the  indorsement,  that  the 
maker  was  a  transient  person,  and  his 
residence  unknown,  an  effort  should  be 
made  notwithstanding,  to  find  him.  Otis 
V.  Hussey,  3  New  Hamp.  346. 

(r)  Patience  v.  Townlcy,  2  Smith  R. 
223.  And  so  the  prevalence  of  a  con- 
tagious malignant  fever  in  the  place  of 
residence  of  the  parties,  which  occasion- 
ed a  stoppage  of  all  business,  has  been 
held  a  sufficient  excuse  for  a  delay  of 
two  months  in  giving  notice  of  a  non- 
payment. Tunno  v.  Lague,  2  Johns. 
Cas.  1.  If  the  holder  deposits  the  note 
in  the  post-office  in  season  to  reach  the 
place  of  payment  at  the  proper  time,  to 
be  there  presented  by  his  agent,  but 
through  the  mistake  of  the  postmaster 
it  is  misdirected  and  delayed,  these  facts 
have  been  held  to  excuse  the  delay. 
Windham  Bank  v.  Norton,  22  Conn. 
213. 

{s}  Rowe  V.  Young,  2  Broil.  &  Bing. 
165  ;  Sanderson  i\  Bowes,  14  East,  500; 
Spindler  v.  Grellett,  1  Exch.  384  ;  Em- 
blin  V.  Dartnell,  12  M.  &  W.  SSO. 

[235] 


227* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


that  place,  (t)  in  order  to  sustain  an  action  against  the  maker 
or  acceptor,  but  he  may  show,  by  way  of  defence,  that  he 
was  ready  there  with  funds,  and  thus  escape  all  damages  and 
interest;  (u)  and  if  he  can  show  positive  loss  from  the  want 
of  such  presentment,  (as  the  subsequent  failure  of  a  bank 
where  he  had  placed  funds  to  meet  the  bill,)  he  will  be  dis- 
charged from  his  liability  on  the  bill  to  the  amount  of  such 
loss.  Such  seems  to  be  the  prevailing,  though  not  the  only 
view,  taken  of  this  subject  by  the  American  authorities ;  for 
some  of  much  weight  hold,  that  where  the  acceptance  is  thus 
qualified,  the  holder  may  refuse  it  and  protest  as  for  non-ac- 
ceptance ;  but  if  he  receives  and  assents  to  it  he  is  bound  by 
it,  and  can  demand  payment  nowhere  else.  The  drawers 
*and  indorsers  are  certainly  discharged  by  a  neglect  to  demand 
payment  at  such  specified  place,  (v)  If  the  place  be  designated 
only  in  a  memorandum,  not  in  the  body  of  the  bill  or  note, 
presentment  may  be  made  at  such  place,  but  may  also  be 
made  where  it  might  have  been  without  such  memoran- 
dum, (iv)     If  the  note  be  payable  at  an?/  of  several  different 


{t)  United  States  Bank  v.  Smith,  11 
Wheat.  171  ;  Foden  v.  Sharp,  4  Johns. 
183  ;  Wolcott  V.  Van  Santvoord,  17 
Johns.  248;  Caldwell  v.  Cassidy,  8  Cow. 
271;  Haxtun  r.  Bishop,  3  Wend.  1.5; 
Wallace  v.  McConncll.  13  Peters,  136 ; 
Carley  r.  Vance,  17  Mass.  389;  Wat- 
kins  V.  Crouch,  5  Leigh,  522 ;  Ruggles 
V.  Patten,  8  Mass.  480  ;  Allen  v.  Smith's 
Admr.,  4  Harring.  234 ;  Dougherty  i\ 
Western  Bank  of  Georgia,  13  Georg. 
288  ;  Ripka  v.  Pope,  5  Louis.  Ann.  61 ; 
Blair  v.  Bank  of  Tcnn.,  11  Humph.  84; 
Weed  V.  Van  Houten,  4  Halst.  189; 
McNairy  i'.  Bell,  1  Yerg.  .502 ;  Miilher- 
rin  r.  Hannum,  2  Id.  81 ;  Bacon  v.  Dyer, 
3  Fairfield,  19;  Remick  v.  0"Kyle,  Id. 
340;  Irvine  v.  Withers,  1  Stew.  (Ala.) 
234  ;   Eldrcd  r.  Hawes,  4   Conn.  465 ; 

Waite,  J.,  in  Jackson  v.  Packer,  13  Id. 
358;  Payson  r.  Whitcomb,  15  Pick. 
212  ;  Sumner  v.  Pord,  3  Arkansas,  389; 
Green  v.  Goings,  7  Barb.  Sup.  Ct.  652. 

Contra,  per  Stovi/,  J.,  Picquet  i\  Curtis, 
1  Sumner,  478.  If  the  bill  or  note  be 
payable  at  a  particular  place,  on  demand, 
then,  according  to  Savacje,  C.  J.,  in  Cald- 
well ?'.  Cassidy,  8  Cowen,  271,  demand 
is  necessary.  This  is  denied  in  Dough- 
erty V.  Western  Bank  of  Geo..  13  Georg. 

[236] 


287 ;  but  it  is  there  decided  that  bank 
notes  are  exceptions  to  the  general  rule, 
on  the  ground  of  public  policy,  and  de- 
mand upon  them  must  be  made.  This 
may  however  he  doubted. 

(h)  Wolcott  V.  Van  Santvoord,  17 
Johns.  248;  Wallace  v.  McConnell,  13 
Pet.  136  ;  Savage.  C.  J.,  in  Haxtun  v. 
Bishop,  3  Wend.  21  ;  Wilde,  J.,  in  Car- 
ley  V.  Vance,  17  JNIass.  392 ;  Caldwell  v. 
Cassidy,  8  Cowen,  271. 

(v)  See  3  Kent's  Comm.  97,  99 ;  Pic- 
quet V.  Curtis,  1  Sum.  478;  Gale  v. 
Kemper's  Heirs,  10  Louis.  205  :  Warren 
V.  Allnutt,  12  Louis. 454;  Bacon  r.  Dyer. 
12  Maine,  19. 

(«•)  Williams  v.  Waring,  10  B.  &  C. 
2.  This  was  an  action  of  assumpsit 
on  a  promissory  note  by  the  indorsee 
against  the  maker.  The  note  was  in 
the  following  form:  —  "Slst  Jan.  1827. 
Two  months  after  date  I  promise  to  pay 
to  A.  B.  .£25,  value  received.  J.  Wa- 
ring. At  Messrs.  B.  &  Co.'s,  Bankers, 
London."  The  note  was  in  the  hand- 
writing of  the  defendant,  the  maker,  and 
the  memorandum  was  written  at  the 
time  the  note  was  made.  For  the  de- 
fendant it  was  contended  that  the  note 
should  have  been  described  in  the  decla- 


CH.  XV.]  INDORSEMENT.  *228 

places,  presentment  at  any  one  of  them  will  be  sufficient,  (ivw) 
It  has  been  held  that  where  a  note  was  made  payable  at  a 
certain  house,  and  the  occupant  of  the  house  was  himself 
the  holder  of  the  note  at  its  maturity,  it  was  demand  enough 
if  he  examined  his  accounts,  and  refusal  enough  if  he  had 
no  balance  in  his  hands  belonging  to  the  party  bound  to 
pay.  (x) 


SECTION  VIII. 

OF   WHOM,   AND    WHEN,   AND    WHERE     THE     DEMAND     SHOULD    BE 

MADE. 

Demand  of  payment  should  be  made  by  the  holder,  or  his 
authorized  agent,  of  the  party  bound  to  pay,  or  his  author- 
ized agent;  (i/)  and  at  his  usual  place  of  residence,  or  usual 
*  place  of  business;  if  the  former,  within  such  hours  as  may  be 
reasonably  so  employed,  and  if  the  latter  in  business  hours. 
And  if  the  holder  finds  the  dwelling-house  or  place  of  busi- 
ness of  the  payor  closed,  so  that  he  cannot  enter  the  same, 
and  after  due  inquiry  cannot  find  the  payor,  the  prevalent 
doctrine  in  this  country  is,  that  he  may  treat  the  bill  or  note 
as  dishonored,  (z)     If  the  payor  has  changed  his  residence  to 

ration  as  payable  at  Messrs.  B.  &  Co.'s,  sufficient  to  decide  this  case  in  favor  of 

and  that  evidence  of  presentment  there  the  plaintiff.    See  also  Morris  v.  Husson, 

should   have   been   given.     The  judge  4  Sandf  93. 

overruled  the  objection,  but  gave  leave        (ww)  Langley  v.  Palmer,  30  Maine, 

to  move   to  enter  a  nonsuit.     It  was  467. 

moved  accordingly,  and  contended  that         (x)  Saunderson  v.  Judge,  2    H.   Bl. 

the  memorandum  was  as  much  parcel  509. 

of  the  contract  as  if  it  had  been  in  the         (?/)  Lord  Kenyan,  in  Cooke  v.  Calla- 

body  of  the  instrument,  and  that  there-  way,  1  Esp.  115.  —  And  a  person  in  pos- 

fore  presentment  at  the  house  where  tlie  session  of  a  bill,  payable  to  his  own  or- 

note  was   made    payable   should   have  der,  is  a  holder  for  this  purpose.     Smith 

been  averred  and  proved.     Lord  Tenter-  v.   McClure,  5  East,  476,  2  Smith,  43  ; 

rf«!,  C.  J.:  "In  point  of  practice,  the  dis-  v.  Ormston,  10  Mod.  286. — A 

tinction  between  mentioning  a  particu-  demand  by  a  notary  is  sufficient.     Hart- 

lar  place  for  payment  of  a  note,  in  the  ford  Bank   i\   Stedman,  3   Conn.  489  ; 

body  and  in  the  margin  of  the  instru-  Sussex  Bank  v.  Baldwin,  2  Harrison, 

mcnt,  has  been  frequently  acted  on.     In  487;  Bank  of  Utica  y.  Smith,  18  Johns, 

the  latter  case  it  has  been  treated  as  a  230.  —  Parol  authority  to  an  agent  to 

memorandum  only,  and  not  as  a  part  of  demand  payment  is  sufficient.     Shed  v. 

the  contract ;  and  I  do  not  see  any  suffi-  Brett,  1  Pick.  401. 

cient  reason   for   departing  from   that         (~)  Hine  w.  Allely,  4  B.  &  Ad.  624; 

course."     Baylerj,  J.,  cited   the  case  of  Shed  y.  Brett,  1  Pick.  413;  Williams  i?. 

Exon  I'.  Runcll,  4  M.  &  S.  505,  as  being  Bank  of  United   States,  2  Peters,  96  ; 

[237] 


229* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


some  other  place  within  the  same  State,  the  holder  must  en- 
deavor to  find  it  and  make  demand  there ;  but  if  he  have 
removed  out  of  the  State,  subsequent  to  making  the  note,  the 
demand  may  be  made  at  his  former  residence,  (a)  The  pre- 
sumption is  that  the  holder  lives  where  he  dates  the  note, 
and  demand  must  be  made  there,  unless  when  the  note  falls 
due  the  payor  resides  elsewhere  within  the  State,  and  the 
holder  knows  it,  and  then  the  holder  must  make  the  demand 
there,  (b) 

The  whole  law  in  respect  of  demand  and  notice  is  very 
much  influenced  by  the  usage  of  particular  places ;  where 
such  usage  is  so  well  established  and  so  well  known  that  per- 
sons may  be  supposed  to  contract  with  reference  to  it.  Of 
this  the  English  rule  in  relation  to  checks  on  bankers  affords 
an  instance,  (c)  and  also  the  usage  of  the  banks  of  our  differ- 
*  ent  cities  as  to  notes  discounted  by  them,  or  left  with  them 
for  collection.     In  this  country  the  practice  is  not  uniform  ; 


Ogden  V.  Cowley,  2  Johns.  274 ;  Fields 
V.  Mallett,  3  Hawkes,  465;  Buxton  v. 
Jones,  1  Mann.  &  Gr.  S3. — It  has  been 
said,  however,  that  in  such  case  some 
inquiry  or  effort  ought  to  be  made  to 
find  the  maker.  Ellis  v.  Commercial 
Bank,  7  Howard,  (Miss.)  294;  Sullivan 
V.  Mitchell,  1  Car.  Law  Eep.  482  ;  Col- 
lins V.  Butler,  Str.  1087. 

(a)  Anderson  i\  Drake,  14  Johns. 
114;  McGruder  v.  Bank  of  Washing- 
ton, 9  Wheat.  598  ;  Gillespie  v.  Hanna- 
han,4  McCord,  503  ;  Reid  v.  Morrison, 
2  Watts  &  Serg.  401  ;  Wheeler  v.  Field, 
6  Met.  290 ;  Nailor  v.  Bowie,  3  Maryl. 
251. 

(6)  Fisher  v.  Evans,  5  Binney,  541 ; 
Nailor  r.  Bowie,  3  Maryl.  251 ;  Lowery 
V.  Scott,  24  Wend.  358.  See,  also,  on 
this  subject,  Taylor  v.  Snyder,  3  Denio, 
145.  A  note,  specifying  no  place  of 
payment,  was  dated,  made,  and  indorsed 
in  the  State  of  New  York,  but  the  maker 
and  indorscr  resided  in  Mexico,  and  con- 
tinued to  reside  there  when  the  note  fell 
due,  their  place  of  residence  being  known 
to  the  payee  and  holder,  both  when  the 
note  was  given  and  when  it  matured  ; 
and  it  was  held  that  a  demand  of  pay- 
ment on  the  maker  and  a  notice  to  the 
indorser  were  necessary  to  charge  the 
indorser.  Spies  v.  Gilmore,  1  Barb. 
Sup.  Ct.  158;  and  affirmed  on  appeal, 
1  Comst.  321. 

[238] 


(c)  Eobson  V.  Bennett,  2  Taunt.  388. 
By  the  practice  of  the  London  bankers, 
if  one  banker  who  holds  a  check  drawn 
on  auotiier  banker  presents  it  after  four 
o'clock,  it  is  not  then  paid,  but  a  mark 
is  put  on  it,  to  show  that  the  drawer  has 
assets,  and  that  it  will  be  paid ;  and 
checks  so  marked  have  a  priority,  and 
are  exchanged  or  paid  next  day  at 
noon,  at  the  clearing-house  ;  held,  that  a 
check  presented  after  four,  and  so  mark- 
ed, and  carried  to  the  clearing-house 
next  day,  but  not  paid,  no  clerk  from 
the  drawee's  house  attending,  need  not 
be  presented  for  payment  at  tlie  bank- 
ing house  of  the  drawee.  Such  a  mark- 
ing, under  this  practice,  amounts  to  an 
acceptance,  payable  next  day  at  the 
clearing-house.  It  is  not  necessary  to 
present  for  payment  a  check  payable  on 
demand  till  the  day  following  the  day 
on  which  it  is  given.  A  person  receiv- 
ing a  check  on  a  banker  is  equally  au- 
thorized in  lodging  it  with  his  own 
banker  to  obtain  payment,  as  he  would 
be  in  paying  it  away  in  the  course  of 
trade.  Although  in  consequence  thereof 
the  notice  of  its  dishonor  is  postponed 
a  day,  one  day  being  allowed  for  notice 
from  the  payee  to  the  drawer,  after  the 
day  on  which  notice  is  given  by  the 
bankers  to  the  payee.  See  Bancroft  v. 
Hall,  Holt,  N.  P.  476  ;  Henry  v.  Lee,  2 
Chitty,  124. 


en  XV.] 


INDORSEMENT. 


•230 


but,  in  general,  a  demand  is  made  some  days  before  the  ma- 
turity of  a  note,  by  a  notice  post-dated  on  the  day  of  matu- 
rity, omitting  the  days  of  grace.  But  it  is  usual  also,  if  the 
note  be  not  paid  on  the  last  day  of  grace,  to  make  a  formal 
demand  on  that  day,  after  business  hours.  Bills  and  notes 
sometimes  express  days  of  grace,  but  generally  not.  Usu- 
ally, and  in  some  States  by  statutory  provisions,  all  bills  and 
notes  on  time,  when  grace  is  not  expressly  excluded,  are  en- 
titled to  grace,  (d)  But  notes  payable  on  demand  are  not 
entitled  to  grace,  (e)  nor  are  checks  on  banks,  though  pay- 
able on  time,  (ee) 

It  sometimes  happens  that  when  a  bill  is  drawn  in  one 
country,  and  made  payable  in  another,  the  laws  in  relation  to 
presentment  and  demand  differ  in  those  countries;  and  then 
the  question  arises,  which  law  shall  prevail.  It  would  seem 
that  in  England  the  law  of  the  place  in  which  it  is  payable 
prevails  ;  (/)  but  in  this  country  it  has  been  decided  that  the 
*law  of  the  country  in  which  the  bill  is  indorsed  shall  govern 


(d)  Corp  V.  McComb,  1  Johns.  Cas. 
328  ;  Jackson  v.  Richards,  2  Caines, 
343.  In  the  absence  of  proof  to  the 
contrary,  the  legal  presumption  is,  that 
in  every  State  in  the  Union  three  days 
grace  are  allowed  by  law  on  bills  of  ex- 
change and  promissory  notes.  Wood 
V.  Corl,  4  Met.  203.  In  this  case,  Shaiv, 
C.  J.,  said:  — "  AVe  consider  it  well  set- 
tled, that  by  the  general  law  merchant, 
which  is  part  of  the  common  law,  as 
prevailing  throughout  the  United  States, 
in  the  absence  of  all  proof  of  particular 
contract  or  special  custom,  three  days 
of  grace  are  allowed  on  bills  of  exchange 
and  promissory  notes ;  and  when  it  is 
relied  upon  that  by  special  custom  no* 
grace  is  allowed,  or  any  other  term  of 
grace  than  three  days,  it  is  an  exception 
to  the  general  rule,  and  the  proof  lies  on 
the  party  taking  it."  See  also  Bussard 
!;.  Levering,  6  Wheat.  102;  Renner  v. 
Bank  of  Columbia,  9  Wheat.  581  ; 
Mills  V.  United  States  Bank,  11  Wheat. 
431;  Cook  v.  Darling,  2  E.  1.385.— 
The  days  of  grace  on  negotiable  notes 
constitute  a  part  of  the  original  con- 
tract. Savings  Bank  v.  Bates,  8  Conn. 
505,  but  the  notes  may  be  declared  on 
according  to  their  terms  without  adding 
the  days  of  grace.     Padwick  v.  Turner, 


11  Q.B.  124.— Whenever  the  maker  of 
a  note  is  entitled  to  grace,  the  indorser 
has  the  same  privilege.  Pickard  v.  Va- 
lentine, 13  Maine,  412;  Central  Bank 
V.  Allen,  16  Maine,  41. 

(e)  In  re  Brown,  2  Story,  503  ;  Salter 
V.  Burt,  20  Wend.  205 ;  Somerville  v. 
Williams,  1  Stewart,  484 ;  Camraer  v. 
Harrison,  2  McCord,  246. 

(ee)  Bowen  v.  Newell,  5  Sanf.  326. 

(/)  Rothschild  v.  Currie,  1  Q.  B.  43. 
This  was  an  action  by  an  indorsee 
against  the  payee  and  indorser  of  a  bill 
of  exchange,  drawn  in  England  on  and 
accepted  by  a  French  house,  both  plain- 
tiff and  defendant  being  domiciled  in 
England ;  Held,  that  due  notice  of  the 
dishonor  of  the  bill  by  the  acceptor  was 
parcel  of  the  conti-act ;  that  the  bill  being 
made  payable  by  the  acceptor  abroad 
was  a  foreign  bill,  and  the  lex  loci  con- 
tractus must  therefore  prevail;  and  that 
it  was  sufficient  for  plaintiff  to  show 
that  he  had  given  defendant  such  notice 
of  the  dishonor  and  protest,  as  was  re- 
quired by  the  law  of  France.  In  Gibbs 
V.  Fremont,  20  E.  L.  &  E.  555,  the  case 
of  Rothschild  v.  Currie,  is,  however,  re- 
ferred to  hyAldeison,  B.,  as  of  question- 
able authority. 

[239] 


•231-*232 


THE  LAW  OF   CONTRACTS. 


[book  I. 


exclusively  as  to  the  liabilities  and  duties  of  the  indorsers, 
on  the  ground  that  every  indorsement  is  substantially  a  new 
contract,  (g-) 


*  SECTION  IX. 


OF   NOTICE    OF  NON-PAYMENT. 


Where  a  bill  is  not  accepted,  or  a  bill  or  note  is  not  paid 
at  maturity,  by  the  party  bound  then  to  pay  it,  all  subsequent 
parties  must  have  immediate  notice  of  this  fact.  Even  a 
verbal  agreement  of  the  parties  to  waive  notice  may  notren- 
*der  it  unnecessary  ;  (h)  but  it  is  sometimes  waived  in 
writing,  and  this  usually  on  the  note;  as  by  the  words,  "I 
waive  demand  and  notice ;"  and  such  waiver  is  sufficient,  (hh) 
A  waiver  of  demand  alone  should  operate  as  a  waiver  of 
notice,  for  if  demand  of  payment  is  not  made  because  un- 
necessary, a  notice  can  hardly  be  necessary  or  useful;  but  a 
waiver  of  notice  alone  is  not  a  waiver  of  demand,  for  though 
the  party  waiving  may  not  wish  for  notice  of  the  non-pay- 
ment, he  may  still  claim  that  payment  should  be  demand- 


{g)  Aymerw. Sheldon,  12Wend.  439. 
In  this  case  it  was  held,  that  the  indor- 
see of  a  bill  of  exchange,  payable  a 
certain  number  of  days  after  sight, 
drawn  in  a  French  West  India  Island,  on 
a  mercantile  house  in  Bordeaux,  and 
transferred  in  the  city  of  Netv  York  by 
the  payee,  need  not  present  the  bill  for  pay- 
ment after  protest  for  non-acceptance,  not- 
withstanding that  by  the  French  codede 
commerce  the  holder  is  not  excused  from 
the  protest  for  non  payment  by  the  pro- 
test for  non-acceptance ;  and  loses  all 
claim  against  the  indorser,  if  the  bill  be 
not  presented  for  protest  for  non-pay- 
ment. In  such  a  case  the  payee  of  the 
bill  is  bound  to  conform  to  the  French 
laiv  in  respect  to  bills  of  exchange,  to 
enforce  his  remedies  against  the  draw- 
ers ;  but  not  so  the  indorsee ;  he  is  only 
required  to  complj-  witli  the  law  mer- 
chant prevailing  here,  the  indorsement 
having  been  made  in  the  city  of  New 
York  ;  and  according  to  which  his  right 
of  action  is   perfect,  after  protest  for 

240 


non-acceptance.  See  also  Hatcher  v. 
McMorine,  4  Dev.  122. 

(h)  It  is  so  intimated  in  some  English 
cases.  Free  v.  Hawkins,  Holt,  550,  8 
Taunt.  92.  But  see  Drinkwater  v.  Teb- 
betts,  17  Maine,  16;  Boyd  v.  Cleave- 
land,  4  Pick.  525  ;  Taunton  Bank  v. 
Richardson,  5  Pick.  437  ;  Fuller  v. 
McDonald,  8  Greenl.  213  ;  Marshall  v. 
Mitchell,  35  jNIaine  221  ;  Farmers  Bank 
V.  Waples,  4  Harring.  429  ;  Hoadley  r. 
•  Bliss,  9  Georgia  303;  Lary  i'.  Young,  8 
Eng.  (Ark.)  402.— Although  a  bill  or 
note  has  been  indorsed  long  after  it  is 
overdue,  there  must  still  be  a  demand 
and  notice  of  default  in  order  to  charge 
the  indorser,  because  a  bill  or  note, 
although  overdue,  does  not  cease  to  be 
negotiable.  Dwight  i".  Emerson,  2  New 
Hamp.  159  ;  Berry  v.  liobinson,  9 
Johns.  121  ;  Grcely  i-.  Hunt,  21  Maine, 
455  ;  Kirkpatrick  v.  McCulloch,  3  Hum- 
phreys, 171  ;  Adams  v.  Torbert,  6  Ala. 
865. 

(hh)  Woodman  v.  Thurston,  8  Gush. 
159. 


CH.  XV.] 


INDORSEMENT. 


*233 


ed.  (i)  And  no  waiver  affects  any  party  but  him  who  makes 
it.  It  was  formerly  held  that  a  neglect  to  give  notice  would 
not  support  a  defence  to  a  bill,  unless  injury  could  be  proved; 
but  it  is  now  well  settled  that  the  law  presumes  injury,  (j) 

The  omission  to  give  such  notice  may,  however,  be  ex- 
cused, by  circumstances  which  rendered  it  impossible,  or 
nearly  so.  The  absconding  or  absence  beyond  reach  of  the 
party  to  be  notified,  (k)  or  the  death  or  sufficient  illness  of  the 
party  bound  to  give  notice,  or  any  sufficient  accident  or  ob- 
struction. But  nothing  of  this  kind  is  a  sufficient  excuse, 
provided  the  notice  could  have  been  given  by  great  diligence 
and  earnest  endeavor,  for  so  much  is  required  by  the  lav/.  (/) 

*  In  general,  the  notice  must  be  given  within  a  reasonable 
time ;  and  what  this  time  is,  is  a  question  of  law  for  the 
court,  (w)  and  each  case  will  be  judged  by  its  circumstances. 
It  may  not,  perhaps,  be  proper  to  say  that  there  is  a  positive 
rule  of  law  on  the  subject,  but  from  the  usage  in  commercial 
places,  and  the  weight  of  authorities,  it  may  be  gathered,  that 
notice  of  non-payment  may  be  given  to  parties  liable  to  pay, 


{i)  Drinkwater  r.  Tebbetts,  17  Maine, 
46  ;  Lane  v.  Steward,  20  Maine,  98  ; 
Berkshire  Bank  v.  Jones,  6  Mass.  524  ; 
Buchanan  v.  Mai'shall,  22  Verm.  561  ; 
See  also  Union  Bank  v.  Hyde,  6  Wheat. 
572  ;  Coddington  f.  Davis,  3  Den.  16  ; 
Bird  i\  LeBlanc,  6  Louis.  Ann.  470. 

(_;■)  Dennis  i'.  Morrice,  3  Esp.  158; 
Norton  r.  Pickerino;,  8  B.  &  C.  610  ; 
Hill  V.  Heap,  Dowl.  &  Ry.  N.  P.  C.  59  ; 
De  Bcrdt  r.  Atkinson,  2  H.  Bl.  336  — 
But  in  Terry  i:  Parker,  6  Ad.  &  El.  502, 
it  was  Iicld,  that  if  the  drawer  of  a  bill 
of  exchange  have  no  effects  in  the  hands 
of  the  drawee  at  the  time  of  the  drawing 
of  the  bill,  and  of  its  maturity,  and 
have  no  ground  to  expect  that  it  will  be 
paid,  it  is  not  necessary  to  present  the 
bill  at  maturity  ;  and  if  it  be  presented 
two  days  afterwards,  and  payment  be  re- 
fused, the  drawer  is  liable,  and  the  case 
of  De  Berdt  v.  Atkinson  is  denied  to 
be  correct.  And  see  ante,  page  225, 
note  (p.) 

(k)  Walwyn  v.  St.  Quintin,  2  Esp. 
516,  I  B.  &  P.  652;  Bowes  r.  Howe,  5 
Taunt.  30.  And  see  Crosse  v.  Smith, 
1  Maulc  &  Selwyn,  545  ;  Bruce  v.  Lvtle, 
13   Barb.   163  ;    Chitty   &   Hulme'  on 

VOL.   I.  21 


Bills,  p.  452.  —  So  war  between  one 
country  and  the  country  where  the  note 
is  payable  excuses  immediate  notice ;  but 
notice  should  be  given  within  reasonable 
time  after  peace.  Hopkirk  i\  Page,  2 
Brock.  20;  Griswold  v.  Waddington,  16 
Johns.  438  ;  Scholefield  v.  Eichelberger, 
7  Peters,  586. 

(/)  A  party  is  bound  to  use  reason- 
able, but  not  excessive  diligence.  Sussex 
Bank  r.  Baldwin,  2  Harrison.  487 ; 
Bank  of  Utica  v.  Bender,  21  Wend.  643  ; 
Clark  I?.  Bigelow,  16  Maine,  246;  Ro- 
berts V.  Mason,  1  Ala.  (N.  S.)  373; 
Preston  v.  Daysson,7  Louis.  7  ;  Runyon 
V.  Montford,  1  Busbee's  Law  371'. — 
If  due  diligence  be  used  it  will  be  suf- 
ficient, although  notice  should  be  sent 
to  the  wrong  place.  Burmester  v.  Bar- 
row, 9  E.  L.  &  E.  402  ;  Nichol  v.  Bate, 
7  Yerg.  305;  Barr  v.  Marsh,  9  Yerg. 
253  ;  Phipps  v.  Chase,  6  Met.  491  ; 
Barker  v.  Clarke,  20  Maine,  156. 

(m)  Hussey  v.  Freeman,  10  Mass.  84  ; 
Nash  i\  Harrington,  2  Aikens,  9  ;  Had- 
dock V.  Murray,  1  New  Ham  p.  140  ; 
Sussex  Bank  v.  Baldwm,  2  Harrison, 
488  ;  Bank  of  Utica  v.  Bender,  21 
Wend.  643 ;  Remer  v.  Downer,  23  Id. 

[241] 


-233 


THE   LAW    OF   CONTRACTS. 


[book  I. 


on  the  same  day  on  which  payment  has  been  refused ;  (n) 
either  personally  or  by  mail,  as  may  be  proper  under  the  cir- 
cumstances ;  and  that  it  should  be  given  as  soon  as  on  the 
day  following  that  on  which  payment  has  been  refused  ; 
(nn)  or  by  the  mail  of  the  same  day,  or  by  the  next  mail 
afterwards,  provided  no  convenient  or  usual  means  intervene. 
Where  there  is  but  one  mail  departing  upon  the  day  suc- 
ceeding the  default,  notice  must  be  sent  thereby  unless  it 
depart  before  ordinary  business  hours  on  that  day.  (o)  But 
if  there  be  more  than  one  mail  it  seems  to  be  considered  that 
it  is  sufficient  if  the  notice  be  deposited  in  time  to  go  by  any 
mail  of  that  day.  (oo)  In  London  it  may  be  sent  by  penny 
post  to  parties  residing  there.  If  the  party  live  out  of  town, 
then  it  may  be  sent  to  the  post-office  nearest  to  his  resi- 
dence, (;?)  or  it  may  be  sent  to  the  post-office  where  the  party 


620.  —  It  seems  to  be  in  some  respects 
partly  a  question  of  law  and  partly  of 
fact.  See  Taylor  v.  Bryden,  8  Johns. 
173  :  Pcrris  v.  Saxton,  1  Southard,  1 ; 
Scott  V.  Alexander,  1  Wash.  335  ;  Dodge 
V.  Bank  of  Kentucky,  2  Marsh.  616. 

(?i)  Burbridge  v.  Manners,  3  Campb. 
193  ;  Bussard  v.  Levering,  6  Wheaton, 
102  ;  Corp  v.  McComb,  1  Johns.  Cas. 
328  ;  Farmers  Bank  v.  Duvall,  7  G.  &  J. 
79  ;  Smith  v.  Little,  10  New  Hamp.  526  ; 
McCIane  v.  Fitch,  4  B.  Monroe,  599. 

(nn)  If  the  parties  reside  in  the  same 
town,  notice  given  at  any  time  on  the 
next  day  after  the  default  is  sufficient. 
Grand  Bank  v.  Blanchard,  23  Pick.  305  ; 
Remington  v.  Harrington,  8  Ohio,  507  ; 
■Whittlesey  v.  Dean,  2  Aikens,  263. 

(o)  Lennox  v.  Roberts,  2  Wheat. 
373  ;  Seventh  Ward  Bank  v.  Hanrick, 
2  Story,  416;  Davis  v.  Hanly,  7  Eng. 
(Ark.)  647  ;  Lawson  v.  Farmers  Bank, 
1  Ohio  State  Reps.  207  ;  Hartford  Bank 
V.  Stedman,  3  Conn.  489  ;  Howard  v. 
Ives,  1  Hill,  263  ;  Whitwell  v.  Johnson, 
17  Mass.  449;  INIitchell  u.  Degrand,  1 
Mason,  176;  United  States  i'.  Barker,  4 
Wash.  C.  C.  465  ;  Chick  v.  Pillsburj-, 
24  Maine,  458  ;  Downs  v.  Planters 
Bank,  1  S.  &  M.  261. 

(oo)  Whitwell  z'.  Johnson,  17  Mass. 
449  ;  Ilousatonic  Bank  v.  Laflin,  5  Cush. 
550  ;  Story  on  Notes,  §  324  ;  Carter  v. 
Burley,  9  N.  II.  558. 

(p)  Scott  V.  Lifford,  9  East,  347  ; 
Dunlap   V.  Thompson,  5    Yergcr,   67 ; 

[242] 


Spann  v.  Baltzell,  1  Flor.  302.  —  But  in 
Pierce  v.  Pendar,  5  Met.  352,  it  was  held, 
that  wlien  both  parties  resided  in  the 
same  town,  notice  coixld  not  be  given 
through  the  post-office,  and  Shaw,  C.  J., 
thus  remarked  upon  this  point : —  "The 
only  remaining  question  then  is,  whether 
notice  by  the  post-office  was  sufficient. 
The  general  rule  certainly  is,  that  when 
the  indorser  resides  in  the  same  place 
with  the  party  who  is  to  give  the  notice, 
the  notice  must  be  given  to  the  party 
personally,  or  at  his  domicil  or  place  of 
business.    Perhaps  a  different  rule  may 
prevail  in  London,  where  a  penny  post 
is  established  and  regulated  by  law,  by 
whom  letters  are  to  be  delivered  to  the 
party   addressed,   or  at    his    place    of 
domicil  or  business,  on  the  same  day 
they   are  deposited.     And  perhaps  the 
same  rule  might  not  apply,  where  the 
party  to  whom  notice  is  to  be  given  lives 
in  the  same  town,  if  it  be  at  a  distinct 
village  or  settlement  where  a  town  is 
large,  and  there  are  several  post-offices 
in  different  parts  of  it.    But  of  this  we 
give  no  opinion.     In  the  present  case 
the   defendant  had  his   residence   and 
place  of  business  in  the  city  of  Bangor, 
and  the  only  notice  given  him  was  by  a 
letter,  addressed  to  him  at  Bangor,  and 
deposited  in  the  post-office  at  that  place. 
And  we  are  of  opinion  that  this  was  in- 
sufficient to  charge  him   as   indorser." 
In  Green  v.  Farley,  20  Ala.  322,  where 
both    indorser  and   holder  resided    in 


en.  XV.]  INDORSEMENT.  *234 

usually  receives  his  letters,  although  not  his  actual  place  of 
residence,  (pp)  And  where  notice  may  be  properly  given 
through  the  post-office,  it  is  sufficient  if  the  notice  be  de- 
posited in  the  office  although  it  is  never  received  by  the  in- 
dorser.  (pq)  And  where  an  indorser  receives  notice,  and  is 
bound  to  give  notice  to  other  parties  as  the  condition  of  mak- 
ing them  liable  to  him,  he  comes  under  the  same  rule,  and 
*each  successive  indorser  has  until  the  next  day  to  give  such 
notice,  (q)  If  a  bill  is  sent  to  an  agent  for  collection  he  is 
treated  as  a  holder  of  the  note  for  the  purpose  of  giving 
notice,  and  his  principal  has  the  same  time  for  notifying  his 
indorsers  after  receiving  notice  from  the  agent,  as  if  himself 
an  indorser  receiving  notice  from  an  indorsee,  (qq) 

If  Sunday  or  any  other  day  intervene,  which  by  law  or  by 
established  usage  is  not  a  day  of  business,  then  it  is  not 
counted,  and  the  obligation  as  to  notice  is  the  same  as  if  it 
fell  on  the  succeeding  day.  (r)  If  a  note  or  bill  payable 
without  grace  falls  due  on  such  a  day,  it  is  not  payable 
until  the  next  day.  But  if  the  last  day  of  grace  falls  upon 
such  a  day,  then  it  is  payable  on  the  day  before ;  for  the 
days  of  grace  are  regarded  as  matters  of  favor,  and  are 
abridged  instead  of  being  lengthened  by  the  intervention  of 
such  a  day.  (s) 

The  purpose  of  notice  is,  that  the  party  receiving  it  may 
obtain  security  from  the  party  liable  to  him,  for  the  sum  for 
which  he  is  liable  to  other  parties.     No  precise  form  is  neces- 

Monti^omery,  but  the  acceptor  resided  in  after  the  day  of  its  reception.     Geill  v. 

Mobile,  and  the  note  was  there  protest-  Jeremy,  Mood.  &  Mai.  61.     See  Hilton 

ed,  it  was  held  that  notice  to  the  indorser  v.  Shepherd,  6  East,  14,  in  notis. 

sent  by  the  notary  through   the  post-  (qq)  Bank  of  U.  S.  v.  Davi;^,  2    Hill, 

office  was  sufficient.     And  see   Bell  v.  451;  Church  r.  Barlow,  9  Pick.  547; 

Ilagerstown  Bank,  7  Gill,  216  ;  Morton  Lawson  v.  Farmers  Bank,  1  Ohio  State 

V.  Wcstcott,  8  Gush.  425.'  Heps.  206. 

(pp)  Morris  ?'.  Husson,  4  Sandf.  94.  (r)   Eagle  Bank  v.  Chapin,  3  Pick. 

(pq)  Bell  r.  Hagerstown  Bank,  7  Gill,  180;  Agnew  i-.  Bank  of  Gettysburg,  2 

216;  Sasscerzj.EarmersBank,  4Maryl.  Harris  &  Gill,  479;  Hawkes  v.  Salter. 

409.  4  Bing.   715;  Wright  r.  Shawcross,  2 

(q)  Darbyshirc  v.  Parker,  6  East,  3  ;  B.  &  Aid.  501,  in  notis;  Bray  v.  Had- 

Smitli  r.  Mullett,  2  Camp.  208  ;  Jame-  wen,  5  M.  &  S.  68.     So  of  public  holi- 

son  V.  Swititon,  2  Camp.  374  ;  Brown  v.  days.     Cuyler  v.  Stevens,  4  Wend.  566  : 

Ferguson,  4  Leigh.  37.     This  rule  is  so  Li'ndo  v.  Unsworth,  2  Camp.  602. 

well  settled  that,  although  the  party  re-  (s)  Wiicre  days  of  grace  are  allowed, 

cciving  notice  may  easily  have  forward-  and  the  last  of  them  fiilh  on  Sunday, 

ed  it  the  same  day,  yet  he  is  not  under  the  fourtli  of  July,  or  other  public  holi- 

obligation  to  send  it  until  the  next  post  day,  the  bill  or  note  is  payable  the  day 

[243] 


235* 


THE    LAW   OF     CONTRACTS. 


[book  I. 


sary ;  but  it  must  be  consonant  with  the  facts,  and  state  dis- 
tinctly the  dishonor  of  the  bill,  and  either  expressly  or  by  an 
equivalent  implication,  that  the  party  to  whom  the  notice  is 
*sent  is  looked  to  for  the  payment,  (t)  And  it  is  held  by  the 
best  authority,  that  this  implication  arises  from  the  actual 
notice  of  dishonor,  (tt)  Nor  will  a  slight  mistake  in  the 
name  or  description  of  the  note  or  party  vitiate  the  notice, 
unless  the  party  receiving  it  is  misled  thereby,  (u)  Any 
party  may  give  notice,  and  it  will  enure  to  the  benefit  of 
every  other  party,  {uu)  provided  the  party  giving  the  notice  be 


before.  Ransom  v.  Mack,  2  Hill,  588  : 
Cuyler  v.  Stevens,  4  Wend.  566  ;  Sliel- 
don  V.  Benham,  4  Hill,  129  ;  Homes  v. 
Smith,  20  Maine,  264  ;  Tassell  r.  Lewis, 
1  Ld.  Raym.  743;  Haynes  v.  Birks,  3 
B.  &  r.  599  ;  Bussard  v.  Levering,  6 
Wheat.  102;  Adams  v.  Otterback,  15 
How.  539  ;  Lewis  v.  Burr,  2  Gaines's 
Cas.  in  Error,  195  ;  Barlow  v.  Planters 
Bank,  7  Howard,  (Miss.)  129  ;  Offut  v. 
Stout,  4  J.  J.  Marshall,  332.  But  if  no 
grace  is  allowed,  and  the  day  on  which 
the  bill  or  note  by  its  terms  falls  due  is 
a  holiday,  it  is  not  payable  until  the  day 
after.  Salter  r.  Burt,  20  Wend.  205 ; 
Avery  v.  Stewart,  2  Conn.  69  :  Dclania- 
ter  r.  Miller,  1  Cowen,  75  ;  Barratt  v. 
Allen,  10  Ohio,  426.  —  If,  however,  the 
nominal  day  of  payment  in  an  instru- 
ment, which  is  entitled  to  grace,  hap- 
pens to  fitU  on  a  Sunday  or  a  holiday, 
the  days  of  grace  are  the  same  as  in 
other  cases,  and  payment  is  not  due 
until  the  third  day  after.  Woolcy  v. 
Clements,  11  Ala.  220. 

(t)  Hartley  v.  Case,  4  B.  &  C.  339; 
Solarte  v.  Palmer,  7  Bing.  530;  Boul- 
ton  V.  Welsh,  3  Bing.  N.  C.  688,  re- 
marked upon  in  Houlditch  v.  Cauty,  4 
Id.  411;  Grugcon  v.  Smith,  6  Ad".  & 
El.  499;  Strange  v.  Price,  10  Id.  125  ; 
Cooke  V.  French,  Id.  131  ;  Furze  v. 
Sharwood,  2  Q.  B.  388 ;  King  v.  Bick- 
ley.  Id.  419;  Robson  v.  Curlewis,  Id. 
421;  Hedger  v.  Steavenson,  2  Mees.  & 
Wels.  799 ;  Lewis  v.  Gompertz,  6  Id. 
399  ;  Bailey  v.  Porter,  14  Id.  44 ;  Mes- 
senger I'.  Southey,  1  Man.  &  Gr.  76  ; 
Armstrong  v.  Christiani,  5  C.  B.  687; 
Everard  v.  Watson,  18  E.  L.  &  E.  194; 
Barstow  r.  Hiriart,  6  Louis.  Ann.  98; 
Denegre  v.  Hiriart,  lb.  100;  Cook  v. 
Litchtield,  5  Sandf.  330 ;  Bcais  v.  Peck, 
12  Barb.  245;  Spann  I'.Baltzell,  1  Flor. 

[244] 


302  ;  Reedy  v.  Seixas,  2  Johns.  Cas. 
337  ;  United  States  Bank  v.  Carneal,  2 
Pet.  543  ;  Mills  v.  Bank  of  United 
States,  11  Wheat.  431  ;  Shed  v.  Brett, 
1  Pick.  401;  Gilbert  r.  Dennis,  3  Met. 
495  ;  Pinkham  v.  Macy,  9  Id.  174 ;  Dole 
V.  Gold,  5  Barb.  Sup.  Ct.  490  ;  Dc  Wolf 
V.  JMurray, 2  Sand.  Sup.  Ct.  166;  Smith 
V.  Little,"  10  New  Hamp.  526  ;  Cowles 
V.  Harts,  3  Conn.  516  ;  Wheaton  v.  Wil- 
marth,  13  Met.  423;  Cayuga  County 
Bank  v.  Warden,  1  Comst.  413  ;  Piatt 
V.  Drake,  1  Doug.  (Mich.)  296  ;  Spies 
V.  Newberry,  2  Id.  425  ;  Bank  of  Cape 
Fear  v.  Sewell,2  Hawks,  560.  See  also 
1  Am.  Leading  Cases,  23 1-237;  Boehme 
V.  Carr,  3  Maryl.  202 ;  Farmers  Bank  v. 
Bowie,  4  Maryl.  290 ;  Woodin  v.  Foster, 
16  Barb.  146. 

(«)  Chard  r.  Fox,  14  Q.  B.  200 ;  Gra- 
ham V.  Sangston,  1  Maryl.  60  ;  Mills  v. 
Bank  of  United  States,  11  Wheat.  431  ; 
Metcalfe  v.  Richardson,  20  E.  L.  &  E. 
301. 

(u)  Mellersh  v.  Rippen,  11  E.  L.  & 
E.  599  ;  Smith  v.  Whiting,  12  Mass.  6  ; 
Tobcy  V.  Lennig,  14  Penn.  483 ;  Ca- 
vuga  Count}'  Bank  v.  Warden,  2  Seld. 
19  ;  Snow  r.  Perkins,  2  Mich.  239  ; 
Housatonic  Bank  v.  Laflin,  5  Cush.  546. 

()((()  Chapman  v.  Keane,  3  Ad.  &  El. 
193,  overruling  Tindal  v.  Brown,  1  T. 
R.  167,  2  Id.  fS6,  n.,  and  Ex  paiie  Bar- 
clay, 7  Ves.  597  ;  Beal's  Admr.  i\  Alex- 
ander, 6  Tex.  531.  But  the  notice  must 
be  given  by  a  party  to  the  bill.  If  given 
by  a  stranger  it  will  not  sufticc.  Jame- 
son v-  Swinton,  2  Camp.  373  ;  Chanoine 
V.  Fowler,  3  Wend.  173  ;  Wilson  v. 
Swabey,  1  Stark.  34.  So  in  case  of 
non-acceptance,  notice  to  the  drawer  by 
the  drawee  will  not  avail,  for  the  latter 
is  not  a  party.  Stanton  v.  Blossom,  14 
Mass.  116.   ' 


CH.  XV.]  INDORSEMENT.  *236 

himself  the  holder  or  an  indorser  akeady  fixed  by  notice,  (uv) 
and  gives  the  notice  to  the  party  sought  to  be  charged,  within 
one  day  after  the  dishonor,  or  after  receiving  notice  him- 
self, {uiv)  But  notice  given  to  one  party  does  not  hold 
another ;  thus  if  a  second  indorser  having  notice,  and  thereby 
being  bound,  neglects  to  give  notice  to  the  first  indorser,  the 
latter  would  not  be  liable,  (y) 

After  the  holder  of  a  dishonored  bill  or  note  has  given  due 
notice  to  indorsers,  he  may  indulge  the  acceptor  or  maker 
with  forbearance  or  delay,  without  losing  his  claim  on  the 
indorsers,  provided  he  retains  the  power  of  enforcing  pay- 
ment at  any  moment,  {iv)  But  if  he  makes  a  bargain  for 
delay,  promising  it  on  a  consideration  which  makes  the  pro- 
mise binding,  or  under  his  seal,  this  destroys  his  claim 
against  the  indorsers.  (x)  The  reason  is,  that  he  ought  not 
to  claim  payment  of  the  indorsers,  unless,  on  payment,  he 
could  transfer  to  them  the  bill  or  note,  with  a  full  right  to  en- 
force payment  at  once  from  the  acceptor  or  maker.  But  he 
*  could  give  them  no  such  right  if  he  had,  for  good  consider- 
ation, given  to  the  acceptor  or  maker  his  promise  that  they 
should  not  be  sued. 

It  has  been  a  subject  of  some  discussion  whether  the  above 
rule  applies  in  cases  of  assignments  in  insolvency.  Bank- 
rupt and  insolvent  laws  usually  provide  that  the  discharge  of 
the  bankrupt  or  insolvent  shall  not  discharge  his  indorsers  or 
sureties  ;  and  it  is  sometimes  attempted  to  efifect  the  same 
result  in  voluntary  assignments  in  insolvency.  The  indent- 
ures   contain  a  provision  that  the  creditors  who  become  par- 

{uv)  Lysaft   v.   Bryant,   9   Com.  B.  r.  Niemcewicz,  11  Wend.  312;  Frazicr 

46.  '  "  V.   Dick,    5  Rob.    (Louis.    Rep.)    249; 

(uw)  Brown   v.  Ferguson,  4  Leigh,  Walker  v-  Bank  of  Mont.  Co.  12  Serg. 

37;  Simpson  v.  Turncy,  5  Humph.  419.  &  Rawle,  382;  Freeman's  Bank  v.  Rol- 

Sec  also  Turner  v.  Leech,  4  B.  &  Aid.  lins,  13  Maine,  202. 
451 ;  Rowe  v.  Tipper,  20  E.  L.  &  E.  220,         (.r)  Clarke  v.  Henty,  3  Y.  &  C.  187  ; 

and  note.  Greely  v.  Dow,  2  Met.  176;  Wharton  v. 

{v)  Morgan  v.  Woodwortli,  3  Johns.  Williamson,  13  Penn.  273.     See   also 

Cas.  90.  Moss  v.  Hall,  5  Exch.  46.   Unlike,  how- 

(w)    Pole    V.   Ford,   2    Chitty,   12.5;  ever,  the  case  of  a  sui'ety,  a  party  liable 

Philpot  V.  Briant,  4  Bing.  717;  Bad-  on  a  bill  as  indorser  will  not  be  dis- 

nall  V.  Samuel,  3  Price,  521  ;  Walwyn  charged,  though  the  party  for  whom  he 

V.  St.  Quiiuin,  1  B.  &  P.  652  :  McLemore  is  bound  take  security  of  the  acceptor 

V.   Powell,   12    Wheat.    554;    Bank  v.  and  then  release  it  without  his  consent. 

Myers,  1   Bailey,  412;    Planters  Bank  liurd  v.  Little,  12  Mass.  503;  Pitts  v. 

I'.  Sellman,  2  Gill  &  Johns.  230  ;  Gahn  Congdon,  2  Comst.  352. 

21*  [245] 


237*  THE   LAW   OP    CONTRACTS.  [bOOK    I. 

ties  to  them  discharge  the  insolvent;  but  they  also  contain  a 
farther  provision  that  the  indorsers  or  sureties  shall  not  be 
discharged.  And  the  question  has  been  whether  the  indor- 
sers or  sureties  are  discharged  notwithstanding  this  provision. 
But  we  think  the  reason  of  the  rule  which  discharges  them, 
does  not  hold  in  this  case.  For  where  the  debtor  himself 
stipulates  that  his  discharge  shall  not  prevent  his  creditors 
from  having  recourse  to  his  indorsers  or  sureties,  it  must  be 
understood  that  he  binds  himself  not  to  oppose  such  discharge 
to  a  suit  against  himself  by  the  indorsers  or  sureties,  if  they 
are  held  liable  to  his  creditors  by  reason  of  a  provision  which 
he  himself  expressly  makes.  The  reason,  therefore,  fails, 
which  generally  makes  his  discharge  their  discharge.  And, 
it  may  be  added,  that  it  is  for  their  benefit  that  this  provision 
should  be  carried  into  effect.  For  if  his  discharge  necessa- 
rily operated  their  discharge,  creditors  would  naturally  prefer 
a  claim  against  them  to  the  dividend  of  an  insolvent,  and 
would  therefore  take  nothing  from  him,  but  all  from  them. 
Whereas  if  this  clause  permits  them  to  get  what  they  can 
from  the  insolvent,  and  look  to  the  indorsers  or  sureties  only 
for  the  balance,  they  would  always  do  so,  and  the  sureties 
would  have  the  benefit  of  whatever  was  paid  by  way  of 
dividend,  [y) 

*  SECTION  X. 
OF   PROTEST. 

If  a  foreign  bill  be  not  accepted,  or  not  paid  at  maturity, 
it  must  be  protested  at  once ;  and  this  should  be  done  by  a 
notary  public,  to  whose  official  acts,  under  his  seal,  full  faith 
is  given  in  all  countries,  (c)     Inland  bills  are  generally,  and 

[y)  Parke,  B.,  Kearsley  v.  Cole,  16  E.  L.  &  E.   112;   Soliier  v.  Loring,  6 

M.  &  W.  135  ;  Ex  parte  Gifford,  6  Ves.  Cush.  537. 

805  ;  Boultbee  v.    Stubbs,  18  Ves.  20;  (x)  Gale  v.  "Walsh,  5  T.  R.  239  ;  Bry- 

Ex parte  Glendinn'mg,  Buck's  Cases  in  den  v.  Taylor,  2  Har.  &  Johns.  396; 

Bankruptcy,  517;  Nicholson  v.  Revill,  Townsley  w.  Sumrall,  2  Pet.  170.     And 

4  Ad.  &  Ell.  675;  Lewis  v.  Jones,  4  B.  the  duty  of  the  notary  cannot  be  per- 

&  C.  506,  and  note ;  Nichols  r.  Norris,  formed  by   an   agent  or  clerk.     Onon- 

3  B.  &  Ad.  41 ;   Clagett  v.  Salmon,   5  dago  County  Bank  v.  Bates,  3  Hill  53  ; 

Gill  &  Johns.  314  ;  Owen  v.  Homan,  3  Cole  v.  Jessup,  9  Barb.  395. 

[246] 


CHAP.   XV.]  INDORSEMENT.  *238 

promissory  notes  very  often  protested  in  like  manner,  but  this 
is  not  required  by  the  law  merchant,  (a)  and  the  notary's  cer- 
tificate of  protest  would  not  in  such  case  be  evidence  of  dis- 
honor, {aa)  If  the  bill  be  protested  for  non-acceptance  by 
the  drawee,  any  third  person  may  intervene,  and  accept  or 
pay  the  bill,  for  the  honor  of  the  drawer  or  of  any  indorser ; 
and  such  acceptance  supra  protest  has  the  same  effect  as  if 
the  bill  had  been  drawn  on  him.  He  is  liable  in  the  same 
way,  and  he  has  his  remedy  against  the  person  for  whom  he 
accepts,  and  all  prior  parties  with  notice ;  and  if  he  pays  the 
bill  for  an  indorser  he  stands  in  the  position  of  an  indorsee 
for  value,  (b)  And  this  is  true  although  the  acceptance  is  at 
the  request  and  for  the  *  honor  of  the  drawee  after  his  refu- 
sal, (c)  The  holder  is  not  bound  to  receive  an  acceptance 
supra  protest,  (d)  but  must  receive  payment  if  tendered  to 
him  supra  protest.  But  after  a  general  acceptance  by  the 
drawee  there  can  be  no  acceptance  supra  protest,  and  a  third 
party  can  only  add  his  credit  to  the  bill  by  a  collateral  guar- 
anty, (e)  If  the  bill  designates  a  third  party  to  whom  re- 
course is  to  be  had  on  non-acceptance,  it  is  said  that  this 
direction  must  be  obeyed.  (/) 

(a)  Windle  v.  Andrews,  2  B.  &  Aid,  with  the  doctrine  of  Mahony  i\  Ashlin, 

696;  Bonar  v.  Mitchell,  5  Exch.  415  •,  2  B.  &  Ad.  478,  where  a  bill  drawn  in 

Young  V.  Bryan,  6  Wheat.  146 ;  Burke  Ireland  upon  a  pefson  resident  in  Eng- 

r.  McKay,  2  How.  U.  S.  66. —  Whether  land  was  held  to  be  a  foreign  bill, 

a  bill  drawn  in  one  of  the  United  States  (an)  Union  Bank  v.  Hyde,  6  Wheat, 

upon  persons  resident  in  another  be  a  574  ;  Taylor  v.  Bank  of  Illinois,  7  Mon. 

foreign  bill  so  as  to  require  a  protest  in  580;  Bank  of  U.  S.  v.  Leathers,  10  B. 

case  of  non-acceptance  or  non-payment,  Jlon.  64;    Carter  v.   Burley,  9  N.  H. 

is  a  question  concerning  which  there  has  558. 

been  a  difference  of  judicial  opinion.   It  (6)  ITolt,  C.  J.,  in  Mutford  v.  "Walcot, 

has  been  held  in  New  York  and  Con-  1  Ld.  Kaym.  574 ;  Mertens  v.  Winning- 

necticut  that  such  bills  are  not  foreign,  ton,  I  Esp.   112;  Goodall  v.  Poihill,  l 

Miller  v.  Hackley,  5  Johns.  375;  Bay  C.  B.  233;  Geralopulo  v.  Wider,  3  E. 

V.  Church,  15  Conn.  15.     But  the  case  L.  &  E.  515;  Wood  v.  Pugh,  7  Ohio, 

in  New  York  has  been  since  overruled  Bart  2,  164;  Baring  r.  Clark,  19  Pick, 

in   the   same  jurisdiction ;  and   in   the  220.     The  payer  supra  protest  for  the 

other   States   where   the   question   has  honor  of  the  indorser  cannot  hold  such 

arisen,  and  in  the  Supreme  Court  of  the  indorser  liable,  if  he  have  already  been 

United  States,  a  contrary  opinion  has  discharged  by  reason  of  want  of  notice 

been  held.     Duncan  v.  Course,  1  Const,  of  the  non-acceptance.     Wlien  a  party 

Kep.  100;  Cape  Fear  Bank  v.  Stine-  has  once  been  exonerated,  his  liability 

metz,   1    Hill,    (S.  C.)  44;  Lonsdale  v.  cannot  be  revived  without  his  assent. 

Brown,   4   Wash.    C.  C.  148;  Phaniix  Higgins  u.  IMorrison,  4  Dana,  100. 

Bank  v.  Hussey,  12  Pick.  483  ;  Brown  (c)  Konig  v.  Bavard,  1  Pet.  250. 

W.Ferguson,  4  Leigh,  37;  Halliday  v.  (d)  Mitford  y.  Walcot,  12  Mod.  410. 

McDougall,  20  Wend.  81 ;    Carter  v.  (e)  Jackson  v.  Hudson,  2  Camp.  447. 

Burley,  9  N.  H.  558  ;  Buckner  v.  Fin-  {f}  Story  on  Bills  of  Exchange,  §§  65. 

ley,  2  Pet.  586.     This  is  in  accordance  219. 

[247] 


239*  THE   LAW   OF   CONTRACTS.  [bOOK  I. 

SECTION  XL 

OF   DAMAGES    FOR   NON-PAYMENT   OF  BILLS. 

If  a  bill  of  exchange  be  not  paid  at  maturity,  the  holder 
may  at  once  redraw  on  the  drawer  or  indorser,  not  only  for 
the  face  of  the  bill,  but  for  so  much  more  as  shall  indemnify 
him  ;  and  therefore  for  so  much  as  shall  cover  the  necessary 
costs  of  protest,  notice,  commissions,  and  whatever  further 
loss  he  sustains  by  the  current  rate  of  exchange  on  the  place 
where  the  drawer  or  indorser  resided,  (g-)  This  is  the  rule  of 
the  law  merchant ;  but  in  this  country,  instead  of  reexchange, 
or  damages  to  be  ascertained  by  a  reference  to  the  above 
items  of  loss,  established  rates  of  damage  are  fixed  by  sta- 
tute or  by  usage,  [h)  These  rates  are  larger  in  proportion  to 
the  distance  of  the  place  where  the  drawee  resides,  from  the 
place  where  the  bill  is  drawn.  And  it  may  be  regretted  that 
more  uniformity  does  not  prevail  among  the  several  States 
in  relation  to  this  matter.  It  seems  to  be  settled  by  the 
weight  of  authority,  that,  in  determining  the  amount  of  re- 
exchange,  the  actual  or  mercantile  par  or  valuation  of  money 
*  should  be  regarded,  and  not  the  mere  legal  or  nominal, 
which,  as  between  this  country  and  England,  differs  very 
widely  from  the  true  value,  (i) 

SECTION  XII. 

BILLS    OF    LADING. 

These  documents  are  also  by  the  law  merchant  now  treated 

(g)  Mellish  i\  Simeon,  2  H.  Bl.  378;  the  acceptor  is  not  liable  for  reexchange. 

De  Tastet   r.  Baring.    11    East,   265;  Woolsey  v.   Crawford,   2   Camp.  445; 

Graves  v.  Dash,  12  Johns.   17,  (over-  Napier r.  Schneider,  12 East,  420;  Sibe- 

ruling  Hendricks  v.  Franklin,  4  Jolins.  ly  v.  TiUt,  1   M'MuIlan's  Equity  Kep. 

119);  Denstonr. Henderson,  13  Id.  322.  320. 

The  holder  mav  also,  upon  protest  for         ,i\  -rr     i  •  i         -o      ,  ,■       .    t  i 

non-accepta«cp,  without  waiting  for  pro-  ,    (^)  Hendricks  j-  Erankhn,   4  Johns. 

test  upon  non-pavment,  maintain  an  ac-  l}^.'  Pf  ^P'"£''-'  J"  5  ^Z'°"'\  ?4  '^'^ '° 

tion  against  tlie  drawer  or  indorser,  and  Gnmshaw  v.  Bender,  6  Mass.  157. 
recover   all    the    customary    damages.         {()  Scott  v.  Bevan,  2  B.  &  Ad.  78  ; 

Weldon  r.  Buck,  4  Johns.  144 ;  Wliite-  Smith   v.   Shaw,  2  AVash.  C.   C.  167; 

head  v.  Walker,  9  M.  &  W.  506.    But  Grant  v.  Healey,  3  Sumner,  523. 
[248] 


en.  XY.]  INDORSEMENT.  -239 

as  negotiable  instruments  to  a  certain  extent.  The  master 
by  signing  such  bill  promises  to  deliver  the  goods  to  A.  B. 
"  or  his  assigns."  If  A.  B.  indorses  the  bill  to  any  person,  or 
in  blank,  delivering  it  to  any  person,  that  constitutes  such 
person  his  assignee,  and  vests  in  him  a  property  in  the  goods, 
and  he  may  claim  the  goods  of  the  captain  or  owners  in  the 
place  of  the  person  putting  them  on  board,  and  with  the 
same  rights,  (y)  But  a  bill  of  lading  is  rather  quasi  nego- 
tiable than  actually  so,  the  efTect  of  the  indorsement  being 
only  to  transfer  the  property  in  the  goods  and  not  the  right 
upon  the  contract  itself,  and  the  indorsee  cannot  maintain  an 
action  on  the  bill  itself  in  his  own  name,  nor  an  action  on  the 
case  for  the  non-delivery  of  the  goods,  [jj)  And  a  mere 
memorandum  of  shipment  would  not  have  the  force  nor  the 
negotiability  of  a  bill  of  lading,  [k]  nor  will  the  property  in 
goods,  for  which  a  bill  of  lading,  has  been  given,  pass  by  a 
mere  delivery  of  the  bill  without  indorsement,  (/)  or  by  in- 
dorsement without  delivery.  (11) 


SECTION  XIII. 
OF    PROPERTY    PASSING   WITH    POSSESSION. 

By  the  common  law,  one  who  has  no  title  to  a  chattel  can 
give  no  title,  except  by  a  sale  in  market  overt,  which  is  not 
known  in  this  country.  An  exception  exists  in  the  case  of 
negotiable  notes  made  payable  to  bearer,  or  payable  to  order 
and  indorsed  in  blank,  so  as  to  be  transferable  by  delivery,  {m) 


(./)  Lickbarrowi'. Mason,  2  T. E.  71  ;  Bench,  297;  Dows  v.  Cobb,  12  Barb. 

Newsom  v.  Thornton,  6  East,  41 ;  Berk-  310  ;  Lineker  v.  AycshCord,  1  California, 

ley  V.  Watling,  7  Ad.  &  EI.  39,  2  Ncv.  75.     See  also  Rowley  v.  Bigelow,  12 

&  Per.  178;  Saltus  I'.  Everett,  20  Wend.  Pick.  314;  Stanton  v.  Eaj^er,  16  Pick. 

268 ;  Chandler  v.  Belden,  1 8  Johns.  157;  474. 

Ryberg  v.   Snell,  2  Wash.   C  C.  294.  {k)  See  Jenkyns  v.  Usborne,  13  Law 

In   Rcnteria   v.   Ending,    1    Moody   &  J.  (N.  S.)  C.  P.  195  ;  Brandt  i\  Bowlbv, 

Malk.  511,  Lord  Tenterdcn  said  that  a  2  B.  &  Ad.  932. 

bill  of  lading,  in  which  the  word  "as-  (/)  Stone  v.  Swift,  4  Pick.  389.     But 

signs"  did  not  appear,  was  nevertheless  sec    Walter    v.  Eoss,  2  Wash.    C.    C. 

"  an  indorsable  instrument,"  and  assign-  283. 

ablc-by  such  indorsement.  (//)  Buffington   v.    Curtis,   15    Mass. 

(jj)  Thompson;;.  Domincv,  14  M.  &  528;  Allen   v.  Williams,  12  Pick.  297. 

W.  403  ;  Howard  v.  Shepherd,  9  Com.  {m)  Miller  v.  Race,  1  Burr.  452. 

[249] 


240  TIIE   LAW   OF   CONTRACTS.  [BOOK   I. 

We  consider  that  this  exception  extends  to  all  negotiable  in- 
struments which  are  transferable  by  mere  delivery  by  any 
party  holding  them  ;  and  that  by  delivery  thereof,  a  good  title 
passes  "to  any  person  honestly  acquiring  them  ;  "  (n)  because 
the  property  passes  with  the  possession.  It  becomes,  then, 
important  to  determine  what  are  negotiable  instruments.  If, 
for  example,  the  bond  of  a  railroad  company,  payable  to 
bearer,  is  a  negotiable  instrument,  then  a  purchaser  in  good 
faith  holds  it  not  only  free  from  the  equitable  defences  which 
the  company  might  have  made  against  the  first  holder,  but 
also  against  the  claims  of  an  owner  who  may  have  lost  it,  or 
from  whom  it  was  stolen.  The  discussion  of  this  subject 
belongs  rather  to  the  topic  of  Construction  of  Contracts, 
under  which  it  will  be  more  fully  considered.  It  may,  how- 
ever, be  said  here,  that  we  regard  the  English  authorities  as 
making  all  instruments  negotiable  which  are  payable  to 
bearer  and  are  also  customably  transferable  by  delivery,  (o) 
within  which  definition  we  suppose  that  the  common  bonds 
of  railroad  companies  would  fall.  Of  the  coupons  attached, 
which  have  no  seal,  this  would  seem  to  be  probable.  But 
usage  must  have  great  influence  in  determining  this  ques- 
tion. 

If  the  owner  of  a  note  or  bill  not  negotiable,  or  specially 
indorsed  to  him,  lose  it,  he  may,  on  sufficient  proof  of  its 

{n)  So  said  by  Abbott,  C.  J.,  in  Gor-  hiding,  before  cited.    Zwinger  ?•.  Samu- 

gier  V.  Mieville"  3  B.  &  Cr.  45.      In  da,  7  Taunt.  265;  Lucas  ;;.  Dorrien,  7 

Clark  V.  Shoe,  Cowper,  197,  Lord  il/a?is-  Taunt.  278;   Lang  v.  Smith,  7   Bing. 

field  puts  notes  and  money  on  precisely  284,  in  which  case  it  was  held  that  cer- 

the  same  footing.     '•When,"  says  he,  tain  bordereaux  tmd  coupons,  entitling  the 

"money  or  notes  are  paid  bond  fide,  and  bearer  to  certain  portions  of  the  public 

upon    a  valuable    consideration,    they  debt  of  Naples,  were  not  negotiable,  the 

never  shall  be  brought  back  by  tbe  true  jury  finding  that  they  did  not  usually 

owner;  but  where  they  come  main  fide  ]iass  from  hand   to  hand  like   money, 

nito  a  person's  hands,  they  are  in  the  Taylor  v.  Kymer,  3  B.  &  Ad.  321.  and 

nature  of  specific  property;  and  if  their  Taylor  v.  Trueman,  1  Moody  &  Malk. 

identity  can  be  traced  and  ascertained,  453,  were  decided  on  the  construction 

the  party  has  a  right  to  recover."  of  st.  6  G.  4,  c.  94.    But  an  instrument 

(o)   See   Gorgier  v.  Mieville,  3  B.  &  for  the  payment  of  money  under  seal  is 

Cr.  45,  and   compare  it  with   Glyn  v.  not  negotiable,  although  it  appear  to  be 

Baker.  13  East,  509.     See  also  "Wookey  so  upon  its  face;    at  least  where  any 

W.Pole,  4  B.&Ald.  1 :  Grant  ?'.Vaughan,  writing  is  necessary  in  order  to  transfer 

3  Burr.  1516,  where  a  draft  by  a  mer-  it.     Clark  r.  Farmers  Man.  Company, 

chant  on  his  hanker  was  held  negotiable.  15  Wend.  256  ;  Parke,  Baron,  in  Hib- 

This  case  distinctly  confirms  the  case  blewhite  r.  McMorinc,  6  Mces.  &  Wels. 

of  Miller  ?■.  llacc.  "   Sec  Lickbarrow  v.  200. 
Mason,  5  T.  II.  G83,  respecting  bills  of 

[250] 


CII.    XV.] 


INDORSEMENT. 


241 


tenor  and  of  his  loss,  sustain  an  action  at  law,  because  no 
finder  can  give  good  title  to  any  holder  by  a  bond  fide  sale  to 
him.  {p)  But  if  the  paper  be  negotiable  and  indorsed  in 
blank,  or  if  it  be  payable  to  bearer,  then  the  promisor  or  in- 
dorser  may  be  held  liable  to  an  innocent  holder  for  consider- 
ation. It  follows,  therefore,  that  the  promisor  or  indorser 
should  not  be  liable  to  the  loser,  without  sufficient  indemnity 
to  him  against  the  possible  demand  of  such  innocent  pur- 
chaser, [q]  But  courts  of  law  find  it  difficult  to  require 
such  indemnity,  or  to  judge  of  its  sufficiency ;  and  there- 
fore, generally  at  least,  they  turn  the  loser  over  to  courts  of 
equity,  in  which  the  defendant  may  be  properly  secured  by 
adequate  indemnity  ;  and  then  the  action  will  be  main- 
tained, (r) 


(p)  Wain  y.  Bailey,  10  Ad.  &  El.  616. 

(q)  Pierson  v.  Hutchinson,  2  Campb. 
211;  Hansard  r.  llobinson,  7  B.  &  C. 
90  ;  Clay  v.  Crowe,  18  E.  L.  &  E.  514  ; 
Davis  r."Dodd,  4  Taunt.  G02  ;  Toole  v. 
Smith,  1  Holt,  144;  Rowley  v.  Ball,  3 
Cow.  303;  Kirby  v.  Sisson,  2  Wend. 
550.  But  evidence  is  admissible  to 
show  that  the  note  has  been  actually 
destroyed,  or  that  it  cannot  come  to  the 
hands  of  a  bond  fide  holder.  Rolt  v. 
Watson,  4  Bing.  273 ;  Rowley  v.  Ball, 
supra.     The  case  where  a  bank  bill  is 


cut  in  halves  and  one  of  them  is  lost, 
and  payment  sought  for  the  other, 
would  seem  to  stand  upon  the  same 
grounds  as  tliat  of  a  lost  negotiable 
instrument.  Mayor  u.  Johnson,  3  Camp. 
324.  But  see  Bullet  v.  Bank  of  Penn- 
sylvania, 2  Wash.  C.  C.  172;  Patton 
V.  State  Bank,  2  Nott  &  McCord.  464  ; 
Hinsdale  v.  Bank  of  Orange,  6  Wend. 
378. 

(r)  Pierson  v.  Hutchinson,  2  Campb. 
211;  Lord  Eldon,  in  Ex  parte  Greenway, 
6  Yes.  812. 

[251] 


242  THE   LAW   OF   CONTRACTS.  [bOOK   I. 


CHAPTER  XVI. 

INFANTS. 

In  general,  all  persons  may  enter  into  contracts;  and  when 
a  contract  is  made  the  law  presumes  the  competency  of  the 
parties.  If,  therefore,  a  party  rests  his  action  or  his  defence 
upon  his  incompetency,  this  must  be  proved.  (5)  This  incom- 
petency may  be  absolute  and  entire,  or  limited  and  partial ; 
in  some  cases  a  contract  is  void  as  to  both  parties,  and  in 
others  only  as  to  one;  in  some  cases  void,  and  in  others  void- 
able.    We  shall  consider  these  questions  as  we  proceed. 

As  the  essence  of  a  contract  is  an  assent  or  agreement  of 
the  minds  of  both  parties,  where  such  assent  is  impossible, 
from  the  want,  immaturity,  or  incapacity  of  mind,  there  can 
be  no  perfect  contract.  On  this  ground  rests,  originally,  the 
disability  of  infants.  We  will  first  consider  this  class  of  dis- 
abled persons. 

SECTION  I. 

INCAPACITY  OF  INFANTS  TO  CONTRACT. 

All  persons  are  denominated  infants,  by  the  common  law, 
until  the  age  of  twenty-one.  But  in  some  parts  of  this  coun- 
try females  reach  majority,  at  least  for  some  purposes, 
at  eighteen,  {t)     An  infant,  using  the  word  in  its  common 

(s)  Jeune   i-.   Ward,    2   Stark.   326:  ant  must  prove  that  he  was  still  a  minor 

Leader  v.  Barry,  1  Esp.  353.     Not  only  at  the  time  of  such  ratification.     Bay  f. 

is  a  defendant,  v/ho  sets  up  his  infancy  Gunn,  1  Denio,  108  ;  Borthwick  r.  Car- 

as  a  defence  to  his  contract,  bound  in  ruthers,  1  T.  E.  648  ;  Hartley  v.  Whar- 

the  first  instance  to  prove  his  non-age  ton,  11  Ad.  &  El.  934. —  If  the  infant 

affirmatively,  but  if  to  such  a  plea  the  leave  the  point  in  doubt,  the  defence  is 

plaintiff  reply  a  new  promise,  after  the  not  sustained.     Harrison  v.  Clifton.  17 

defendant  bcceime  of  age,  he  may  show  a  Law  Jour.  Ex.  233. 
new  promise  at  any  time,  (before  the         (t)  Sparhawk  v.  Buell,  9  Yerm.  42, 

suit  was  commenced,)  and  the  defend-  79. 

[252] 


CH.   XVI.]  INFANTS.  243 

meaning,  that  of  a  child  who  has  not  left  its  mother's  arms, 
cannot  make  a  contract  in  fact;  but  most  children  who  are  a 
few  years  old  are  capable  of  making  a  contract.  And  when 
the  law  says  that  they  are  not  capable  until  the  age  of 
twenty-one,  it  is  for  their  sake,  and  by  way  of  protection 
to  them.  If  we  keep  this  principle  distinctly  in  mind  it  will 
guide  us  through  the  intricacies  of  the  law  in  relation  to  this 
subject. 

Thus,  as  a  general  rule,  the  contract  of  an  infant  is  said  to 
be  not  void,  but  voidable.  That  is,  he  may,  either  during  his 
minority,  or  within  a  reasonable  time  after  he  becomes  of 
age,  (u)  avoid  the  contract  if  he  will,  or  when  he  reaches  the  age 
of  twenty-one,  if  he  sees  it  to  be  for  his  benefit,  and  chooses  so 
to  do,  he  may  confirm  and  enforce  the  contract.  It  has  been 
said  that  whatever  contract  the  court  can  see  and  declare  to 
be  to  his  prejudice,  that  will  be  pronounced  void;  and  what- 
ever contracts  are  not  clearly  to  his  prejudice,  but'may  be  use- 
ful, these  will  be  held  voidable.  And  in  reliance  on  this  prin- 
ciple as  a  safe  and  sufficient  rule,  an  infant's  warrant  of  at- 
torney authorizing  a  conveyance  of  his  land,  (/,')  a  confession 
of  a  judgment  against  him,  (iv)  and  his  cognovit  for  the  same 
purpose,  although  the  action  was  wholly  for  necessaries,  (x) 
or  his  appointment  of  an  agent  of  any  kind,  (?/)  his  bond 
with  a  penalty,  or  for  the  payment  of  interest,  [z)  a  release  by 
a  female  infant  to  her  guardian,  [a)  an  infant's  contract  of 
suretyship,  {b)  and  his  release  of  his  legacy  or  his  distributive 

(u)   It  was    settled   by   the  case   of        (w)  Saunderson  w.  Marr,  1  H.  BI.  75  • 

Zoucli  V.  Parsons,    3   Burr.    1794,   that  Bennett  v.  Davis,  6  Cow.  393;   Waples 

an  infant  cannot  avoid  his  conveyances  v.  Hastings,  3  Harring.  403. 
of  land   until    he  becomes  of  age.     In         (x)  Oliver  y.  Woodroffe,  4  Mees    & 

lioof  V.    StaHord,   7   Cow.  179,  it   was  Welsb    650 

held  that  the  same  rule  applied  to  a  sale         (   ,  y,,  •^.    Thomas   v.  Koberts,    16 

of  chattds;  but  m  the  same  case,  on  Mees.  &  Welsb.  778. 
error,  9  Cow.  626,  the  distinction  was         ,  ,  „     ,.        i^-     .       „  ,.,r   „  ^ 

maintained,    that   while   he   could   not  ^  (^l  Baylis  i-.  Dineley,  3  M.  &  S.  477  ; 

avoid   a  convevance  of  lands   until  he  fj"",^*^''   ^'-  ^^""^'T-    ^.^'"-^    ^   S™"h, 

was  of  age,  he  inigiit  a  sale  of  chattels.  (^''"'"^  ^"^  i  <-t.l^ock  v.  h  erguson,  3  Des. 

So  also  in  Bool  v.  Mix,  17  AVend.  119,  '*^-- 

and  in  yiiipman  v.  Ilorton,  17   Conn.         («)  Fi'i'lge   'v-  The   State,  3   Gill  & 

481.     See  also  Matthewson  V.  Johnson,  Johns.  104. 

1  Hofifman's  Ciiancery,  560.     bee  post         (l>)  Wheaton  v.  East,  5  Yerg.  41,  61  ; 

on  thissuliject.  Allen  v.  Minor,  2  Call,  70.     But  see 

(v)  Lawrence  v.  McArter,  10  Ohio,  contra.     Hinely   v.  Margaritz,  3  Barr, 

37  ;  I'yle,  &c.  v.  Cravens,  4  Littell,  17.  423. 

VOL.  L  22  [253] 


244 


THE   LAW   OF   CONTRACTS. 


[book  I. 


share  in  an  estate  (c)  have  each  been  declared  to  be  abso- 
lutely void,  (d) 

The  better  opinion,  however,  as  may  be  gathered  from  the 
later  cases,  cited  in  our  notes,  seems  to  be  that  an  infant's 
contracts  are  none  of  them  absolutely  void,  that  is,  so  far  void 
that  he  cannot  ratify  them  after  he  arrives  at  the  age  of  legal 
majority.  Such,  at  least,  is  the  strong  tendency  of  modern 
decisions,  (e) 

But  the  contract  of  an  infant  for  necessaries  is  neither  void 
nor  voidable.  It  is  permitted  for  his  own  sake  that  he  may 
make  a  valid  contract  for  these  things,  as  otherwise,  whatever 
his  need,  he  might  not  be  able  to  obtain  food,  shelter,  or  rai- 
ment. And  the  principles  which  govern  this  rule  show  plainly 
that  it  is  intended  only  for  his  benefit,  and  is  regarded  and 
treated  as  an  exception  to  a  general  rule. 

The  word  necessaries,  in  relation  to  an  infant,  is  not  used 
in  a  strict  sense  ;  but  the  social  position  of  the  infant,  his 
means,  and  those  of  his  parents,  are  taken  into  consideration. 
Necessaries  for  him  mean  such  things  as  he  ought  properly 
to  have,  and  not  merely  that  which  is  indispensable  to  his  life 
or  his  comfort.  It  is  difficult  to  lay  down  any  positive  rule 
which  shall  determine  what  are  and  what  are  not  necessa- 
ries. Indeed  there  is  no  such  rule.  It  may  be  said,  how- 
ever, that  whether  articles  of  a  certain  kind,  or  certain  sub- 
jects of  expenditure,   are  or  are  not  such   necessaries  as  an 


(c)  Langford  v.  Frey,  8  Humphrev, 
443. 

(d)  In  Connecticut  some  contracts  of 
an  infant  arc  made  void  by  statute.  Ko- 
eers  V.  Ilurd,  4  Day,  57 ;  JMaples  v. 
Wiglitman,  4  Conn.  376. 

(e)  The  rule  that  an  inftint's  contracts 
are  void  or  voidable  according  as  they 
may  be  pronounced  to  he  prejudicial  or 
useful,  has  been  laid  down,  and  recog- 
nized by  many  respectable  courts  and 
judges.  See  Keane  v.  Boycott,  2  H. 
Bl.  R.  513  ;  Baylis  r.  Dineley,  3  Maule 
&  Sehvvn,  477,  481  ;  Latt  v.  Booth.  3 
Carr.  &"  Kir,  292;  Vent  v.  Osgood,  19 
Pick.  572 ;  Lawson  v.  Lovejoy,  8  Grcenl. 
405 ;  Rogers  v.  Kurd,  4 "  Dav,  57  ; 
McGan  r.  Marshall,  7  Hump.  121; 
Tridge  v.  The  State,  3  Gill  &  Johns. 
104;  Ridgeley,  v.  Crandall,  4  Maryl. 
435;  Wlieaton   i-.   East,    5   Yerg.    41: 

[254] 


McMinn  r.  Richmonds,  6  Id.  9  ;  Kline 
V.  Beebe,  6  Conn.  494  ;  United  States  v. 
Bainbridge,  1  Mason,  71,  82,  and  many 
other  cases.  But  it  may  be  questioned 
whether  it  is  a  sufficiently  clear,  certain, 
and  practical  rule.  The  more  recent 
authorities  incline  to  hold  all.  (or  all 
with  a  single  exception,)  an  infant's 
contracts  to  be  ro/(/a/^/e merely,  not  void, 
and  that  it  is  the  privilege  and  right  of 
the  infant,  only  (not. that  of  a  court,)  to 
declare  his  contraots  void.  And  the 
rule  itself,  as  alluded  to  in  the  text,  and 
sustained  hj  the  older  authorities,  has 
been  declared  unsatisfactory,  liable  to 
many  exceptions,  and  difficult  of  safe 
application.  See  Fonda  v.  Van  Home, 
15  AYend.  631,  635;  Breckenbridge's 
Heirs  r.  Ormsby,  1  J.J.  Marsh.  (Ky.) 
236,  241  ;  Scott" i-.  Buchanan,  2  Humph. 
468:  Cole   v.   Pennoyer,   14   111.    158: 


CH.  XVI.] 


INFANTS. 


245 


infant  may  contract  for,  is  matter  of  law,  and  for  instruction 
by  the  court ;  but  the  question  whether  any  particular  things 
come  under  these  classes,  and  the  question  also  as  to  quan- 
tity^ are  matters  of  fact  for  the  jury  to  determine.  (/)  The 
cases  cited  in  the  notes  will  show  the  views  taken  of  this 
question  by  various  courts  in  England  and  in  this  country. 
It  seems  to  be  certain  that  food,  clothing,  lodging,  and  need- 
ful medicine,  are  such  necessaries ;  and  the  infant  may  con- 
tract for  them  on  credit,  though  he  has  ready  funds  in  his 
possession.  (^^)  So,  proper  instruction.  (A)  Necessaries  for 
an  infant's  wife  may  be  validly  contracted  for  by  him;  but 
not  if  they  be  necessaries  provided  in  view  of  marriage, 
though  his  wife  afterwards  use  them,  {i)  And  it  seems  that, 
as  an  incident  to  a  marriage,  which  an  infant  may  contract, 
he  is  liable  during  coverture  for  the  anti-nuptial  debts  of 
his  wife,  [j)     He  is  also  liable  to  the  same  extent  as  an 


Cummings  v.  Powell,  8  Texas,  80 ; 
Parlce  B.  in  "Williams  r.  Moore,  11  M. 
&  W.  256  ;  1  Am.  Leading  Cases,  103, 
104.     And  sec  note  (/)  p.  275. 

(/)  Bent  V.  Manning.  10  Verm.  225, 
230";  Beeler  v.  Young,  1  Bibb,  519,  521 ; 
Grace  v.  Hale,  2  Humph.  27,  29  ;  Stan- 
ton V.  Wilson,  3  Day,  37  ;  Phelps  v. 
"Worcester,  11  N.  H.  51  ;  Harrison  v. 
Fane,  1  Mann.  &  Grang.  550 ;  Peters  v. 
Fleming,  6  Mees.  &  "\Velslj.  42  ;  Burg- 
hart  V.  Angerstein,  6  C.  &  P.  690  ;  Tup- 
per  V.  Cadwell,  12  Met.  559.  This  is 
to  be  understood  with  some  limitation 
however,  for  the  quantity  of  goods  sup- 
plied may  be  excessive,  in  which  case, 
if  tlie  jury  give  the  plaintiff  his  whole 
bill,  their  verdict  may  be  set  aside. 
Johnson  v.  Lines,  6  Watts  &  Serg.  80. 
So  if  they  find  a  verdict  for  the  plain- 
tiff, contrary  to  the  opinion  of  the  court, 
a  new  trial  will  be  granted.  Harrison 
V.  Fane,  1  Mann.  &  Grang.  550. 

(17)  Burghart  v.  Hall,  4  IMees.  & 
Welsh.  727. 

(/<)  And  for  some  the  term  proper  in- 
struction might  include  a  knowledge  of 
the  learned  languages,  while  for  others 
a  mere  knowledge  of  reading  and  writ- 
ing may  be  sufficient.  Alderson,  B.,  in 
Peters  'v.  Fleming,  6  Mees.  &  Wclsb. 
48.  But  a  regular  collegiate  education 
for  one  in  the  ordinary  station  and  cir- 
cumstances in  life,  has"  been  held  in  this 
country  not  within  the  term  "  necessa- 


ries." Middlebury  College  v.  Chandler, 
16  "Verm.  683.  But  a  good  "common 
school "  education  ^ould  be  for  every 
one;  such  an  education  is  essential  to 
the  intelligent  discliarge  of  civil,  politi- 
cal, and  religious  duties.  Bot/ce,  J.,  in 
Middlebury  College  v.  Chandler,  16 
Verm.  686.  Instruction  in  reading  and 
writing  was  held  necessary,  in  Manby  v. 
Scott,  1  Sidcrfin,  112;  and  the  reason 
given  was,  for  that  it  was  for  the  benefit 
of  the  realm  tliat  learning  should  be  ad- 
vanced. In  Raymond  v.  Loyl,  10  Barb. 
Sup.  Ct.  489,  Hand,  J.,  says  : — ■'  It  was 
said  on  the  argument  that  '  schooling  ' 
is  not  a  necessary.  And  INIr.  Chitty 
says,  it  seems  a  parent  is  not  legally 
bound  to  educate  his  child.  Chit,  on 
Cont.  140.  A  parent  is  almost  the  sole 
judge  of  what  is  necessary.  But  if  a 
parent  is  liable  to  a  third  person,  I  hope 
it  will  never  be  decided  that  sending  to 
a  common  school,  at  a  suitable  season, 
and  to  a  reasonable  extent,  is  not  neces- 
sarv,  in  this  countrv." 

(i)  Turner  Z-.  Trisby,  1  Strange,  168. 
See  Rainsford  v.  Fenwick,  1  Carter, 
215;  Abell  v.  "Warren,  4  Verm.  149, 
152;  Beeler  i-.  Young,  1  Bibb,  519,  520. 
And  an  infant  widow  is  personally 
bound  by  her  contract  for  the  funeral 
expenses  of  her  deceased  husband,  who 
died  leaving  no  assets.  Chappie  v. 
Cooper,  13  M.  &  ^y.  252. 

(  ;■ )  Paris  v.  Stroud,  Barnes's  Notes, 

[255] 


246 


THE   LAW   OF   CONTRACTS. 


BOOK  I. 


adult  would  be  for  necessaries  supplied  to  his  lawful  child- 
ren, (/t)  In  some  cases,  such  things  as  horses,  or  regiment- 
als, or  watches,  or  even  jewellery,  are  regarded  as  neces- 
saries. (/)  An  infant  cannot  borrow  money,  so  as  to  render 
himself  liable  to  an  action  for  money  lent,  although  borrowed 
for  and  expended  for  necessaries  ;  because  the  law  does  not, 
for  his  own  sake,  trust  him  with  the  expenditure,  (in) 


95;  Roach  v.  Quick,  9  Wend.  238; 
Butler  i;.  Breck,  7  Met.  164.  But  this 
is  to  be  understood  only  of  such  debts 
as  the  wife  was  legally  liable  to  pay  at 
her  marriage. 

(k)  Dicta  in  Abell  v.  Warren,  4  Verm. 
152;  Bceler  v.  Young,  1  Bibii,  520. 

(.')  To  be  necessaries  the  articles 
must  be  bond  fide  purchased  for  use,  and 
not  for  mere  ornament ;  they  need  not 
be  such  as  a  person  could  noi  do  with- 
out, but  should  be  in  quality  and  quan- 
tity suitable  for  his  real  wants,  and  his 
condition  and  circumstances  in  life. 
The  term  includes  his  food,  but  not  din- 
ners, confectionery,  fruit,  &c.,  supplied 
to  his  friend.  Brooker  i;.  Scott,  11  M. 
&  W.  67 ;  Wharton  v.  McKenzie,  5  Q. 
B.  606.  Also  lodging  and  house  rent. 
Kirton  v.  Eliott,  2  Bulst.  69;  Crisp  v. 
Churchill,  cited  in  Lloyd  v.  Johnson,  I 
B.  &  P.  340;  but  not  repairs  upon  his 
house,  although  beneficial  in  themselves, 
and  necessary  to  save  the  building  from 
decay.  Tupper  v.  Cadwell,  12  Met.  559 ; 
nor  food  for  his  horses.  Mason  v.  Wright, 
13  Met.  306  ;  nor  the  rent  of  a  building 
for  carrying  on  a  trade  or  manual  occu- 
pation. Lowe  V.  Griffiths,  1  Scott,  458. 
Suitable  clothing  also  comes  within  the 
class  of  necessaries,  but  not  suits  of 
satin  and  velvet  with  gold  lace.  Maka- 
rell  I'.  Bachelor,  Cro.  Eliz.  583 ;  nor 
racing  jackets.  Burghart  v.  Angerstein, 
6  C.  &  P.  690  ;  nor  cockades  for  an  in- 
fant captain's  soldiers.  Hands  v.  Slaney, 
8  T.  R.  578  ;  although  regimentals  for 
a  volunteer,  and  livery  forsm^h  captain's 
servant  have  been  held  otherwise.  Id.; 
Coates  t'.  Wilson,  5  Esp.  152.  The  fol- 
lowing are  examples  of  articles  not  gene- 
rally "  necessaries  : "  Horses,  saddles, 
bridles,  liquors,  pistols,  ))owder,  whips, 
and  fiddles.  Beeler  v.  Young,  1  Bibb, 
519;  Glover  v.  Ott,  1  McCord,  572; 
Rainwater  v.  Durham,  2  Nott  &  Mc- 
Cord, 524  ;  Grace  v.  Hale,  2  Humph. 


27  ;  Clowes  V.  Brooke,  2  Strange,  1101  ; 
Harrison  v.  Fane,  1  Mann.  &  Grang. 
550.  A  stanhope.  Charters  v.  Bayn- 
tun,  7  C.  &  P.  52.  Coach  hire.  Hcdg- 
ley  V.  Holt,  4  C.  &  P.  104.  A  chrono- 
meter for  a  lieutenant  in  the  navy,  not 
then  in  commission.  BeroUes  v.  Ram- 
say, Holt,  77.  Balls  and  serenades. 
Carter,  216.  Counsel  fees  and  expenses 
of  a  law  suit.  Phelps  v.  Worcester,  11 
New  Hamp.  51.  But  as  each  case  is 
governed  by  its  ow7i  peculiar  circum- 
stances, the  examples  here  given  can 
serve  only  as  illustrations,  and  under 
different  circumstances  would  not  neces- 
sarily be  binding  precedents.  Thus,  as 
we  have  just  seen,  horses  are  not  gene- 
rally necessary,  but  when  an  infant  had 
been  advised  to  ride  on  horseback  for 
his  health,  a  different  rule  was  applied. 
Hart  V.  Prater,  1  Jurist,  623. 

(m)  Smith  v.  Gibson,  Peake's  Add. 
Cas.  52;  Darby  v.  Boucher,  1  Salk. 
279 ;  Probart  v.  Knouth,  2  P^sp.  472, 
note;  Beeler  v.  Young,  1  Bibb,  519, 
521  ;  Earle  v.  Peale,  1  Salk.  387,  10 
Mod.  67  ;  Walker  v.  Simpson,  7  Watts 
&  Serg.  83,  88  ;  Bent  v.  Manning,  10 
Verm.  225,  230.  It  is  otherwise  in 
equity.  Marlow  v.  Pitfield,  1  P.  Wms. 
558.  But  money  advanced  to  an  offi- 
cer, to  pro  ure  the  liberation  of  an  in- 
fant from  an  arrest  on  a  debt  for  neces- 
saries, may  be  recovered,  it  not  being 
strictly  speaking  money  lent.  Clarke  v. 
Leslie,  5  Esp.  28.  So  an  infant  is  liable 
for  money  paid  at  his  request  to  satisfy 
a  debt  wliich  he  had  contracted  for 
necessaries.  Randall  v.  Sweet,  1  Denio, 
460.  So  if  the  infant  give  his  note  for 
the  necessaries,  and  another  sign  as 
surety,  and  subsequently  pay  tlie  note, 
he  may  recover  the  amount  of  the  in- 
fant. Conn  V.  Coburn,  7  New  Hamp. 
368;  Haine  v.  Tarrant.  2  Hill,  (S.  C.) 
400. 


[256] 


OIL  XVI.] 


INFANTS. 


247 


SECTION  II. 

OF   THE    OBLIGATIONS    OF   PARENTS   IN   RESPECT   TO    INFANT 
CHILDREN. 


The  obligation  of  the  father  to  maintain  the  child  is  a^d 
always  has  been  recognized  in  some  way  and  in  some  de- 
gree, in  all  civilized  countries.  The  infant  cannot  support 
himself.  Others  must  therefore  supply  him  with  the  means 
of  subsistence  ;  and  the  only  question  is,  whether  the  public 
(that  is,  the  State,)  shall  do  this,  or  shall  his  parent.  And 
justice,  equally  with  the  best  affections  of  our  nature,  answer 
that  it  is  the  duty  of  the  parent.  But  it  is  a  very  difficult 
question  how  far  this  duty  is  made  a  legal  obligation,  by  the 
common  law. 

Jn  England,  after  much  questioning,  and  perhaps  a  tend- 
ency to  hold  the  father  liable  for  necessaries  supplied  to  the 
child,  on  the  ground  of  moral  obligation   and  duty,  (w)  it 


(n)  In  Simpson  v.  Robertson,  1  Esp. 
17,  (1793,)  which  is  the  earliest  case  on 
this  point,  Lord  Ketiyon  said  he  had 
ruled  before,  that  if  a  tradesman  col- 
ludes with  a  young  man,  and  furnishes 
him  with  clothes  to  an  extravagant  de- 
gree. thoiKjli  the  father  rniyht  have  been 
liable  had  they  been  to  a  reasonable  extent, 
the  tradesman  who  gives  credit  to  such 
an  extravagant  degree  shall  not  at  law 
be  allowed  to  recover.  Crantz  v.  Gill, 
2  Esp.  471,  (1796,)  decided  that  if  the 
father  gives  the  son  a  reasonable  allow- 
ance for  his  expenses,  he  is  not  liable 
even  for  necessaries  furnished  to  the 
son.  The  presumption  of  liability  was 
rebutted  by  the  allowance.  But  this 
case  seems  to  imply  that  such  liability 
exists  in  the  absence  of  rebutting  cir- 
(fmnstanees.  —  In  Urmston  v.  Newco- 
mcn,  4  Ad.  &  El.  899,  6  Nev.  &  Man. 
4.')4,  (1836,)  it  was  considered  as  a 
doubtful  question  whether  a  parent  was, 
at  common  law,  liable  to  pay  a  third 
person,  who  furnishes  necessanes  to  his 
deserted  child.  Sir  Jolin  Campbell,  At- 
torney-General, arguendo,  says,  p.  903  ; 
— "  Then  the  question  is  "wliether  a 
father,  if  he  desert  his  legitimate  child, 
be  not  liable  in  assumpsit  to  any  one 

22* 


who  provides  food  and  clothing  for  it. 
There  is  no  express  decision  on  the 
point."  Alexander,  contra: — "The 
supposed  foundation  of  the  defendant's 
liability  does  not  exist.  It  is  not  true 
that  by  the  common  law  a  father  is 
bound  to  maintain  his  child."  Lord 
Denman,  C.  J.,  says:  — "  The  general 
question  is  important ;  but  the  facts  do 
not  raise  it."  And  afterwards,  "  The 
general  question,  therefore,  which  we 
should  approach  with  much  anxiety, 
does  not  arise."  Littkdale,  J.  "  The 
general  question  does  not  arise."  Pat- 
teson,  J.  "  I  agree  that  the  general 
question  does  not  arise."  Coleridge,  J. 
"  It  is  best  to  say  nothing  on  the  gene- 
ral question.  Eor  the  purpose  of  this 
case,  I  will  assume  (what  is  not  to  be 
understood  as  my  opinion  at  present,) 
that  the  general  liability  is  as  contended 
bv  the  Attorney-General." — In  Law  v. 
Wilkin,  6  Ad.  &  El.  718,  (1837.)  the 
defendant's  son  was  from  home  at 
school,  and  appeared  to  be  in  want  of 
clothes,  when  the  plaintiff  supplied  him. 
When  the  boy  went  home,  he  took  the 
clothes  with  him,  but  did  not  wear 
them.  There  was  no  evidence  that  the 
father  ever  saw  the  clothes,  or  that  he 

[257] 


248 


THE    LAW   OF   CONTRACTS. 


[book  I. 


seems  to  be,  on  the  whole,  settled,  that  this  moral  obligation 
is  not  a  legal  one  ;  and  indeed  it  has  been  recently  peremp- 
torily decided  that  no  such  legal  obligation  exists  in  the  case 
of  contracts    made  by   the   child   for   necessaries,  (o)     The 


had  any  communication  with  the  plain- 
tiff before  or  after  they  were  furnished. 
The  judge  at  7}isi  prius  nonsuited  the 
plaintiff,  thinking  there  was  not  sufh- 
cient  evidence  to  ao  to  the  jiirt/  to  charge 
the  defendant.  The  Court  of  King's 
Bencli  set  aside  the  nonsuit,  on  the 
ground  that  there  was  some  evidence  to 
that  effect ;  and  Lord  Denmcm,  C.  J., 
who  with  his  brethren  the  year  before 
had  carefully  and  almost  anxiously 
avoided  the  question,  in  Urmston  ?;. 
Newcomen,  now  said:  —  "A  father  is 
properly  liable  for  any  necessary  provi- 
sion made  for  his  infant  son."  Little- 
dale,  Pcitleson,  and  Coleridge,  JJ.,  made 
no  olijection  to  this  dictum,  although  the 
decision  of  the  case  did  not  require  it. — 
In  Cooper  v.  Thillips,  4  C.  &  P.  581, 
(1831.)  Taunton,  J.,  says  :  —  "  If  the  fa- 
ther of  a  family  lives  at  a  distance  from 
the  phice  at  which  his  children  are,  and 
puts  them  under  the  protection  of  ser- 
vants, I  am  of  opinion  that  if  any  acci- 
dent occurs  to  one  of  the  children,  even 
from  the  carelessness  of  the  servant,  the 
father  of  the  family  is  bound  to  pay  for 
the  medical  attendance  on  such  chiUi." 

(o)  In  Baker  v.  Keen,  2  Starkie,  501, 
(1819.)  Abbott,  C.  J.,  said:  — "A  father 
would  not  be  bound  by  the  contract  of 
his  son,  unless  cither  an  actual  authority 
were  proved,  or  circumstances  appeared 
from  which  such  an  authority  might  be 
implied.  Were  it  otherwise,  a  father, 
who  had  an  imprudent  son,  might  be 
prejudiced  to  an  indefinite  extent;  it 
was  therefore  necessary  that  some  proof 
should  be  given  that  the  order  of  a  son 
was  made  by  the  authority  of  his  father. 
The  question,  therefore,  for  the  consider- 
ation of  the  jury,  was,  whetlier,  under 
the  circumstances  of  the  particular  case, 
there  was  sufficient  to  convince  them 
that  tlie  defendant  had  invested  his  son 
with  such  authority.  He  had  placed  his 
son  at  the  military  college  at  Harlow, 
and  had  paid  his  expenses  whilst  he 
remained  there.  The  son,  it  appeared, 
then  obtained  a  commission  in  the  army, 
and,  having  found  his  way  to  London, 
at  a  considerable  distance  from  his  fa- 
ther's residence,  had  ordered  rcgimen- 

[258] 


tals  and  other  articles  'suitable  to  his 
equipment  for  the  East  Indies.  If  it 
had  appeared  in  evidence  that  the  de- 
fendant had  supplied  his  son  with  mo- 
ney for  this  purpose,  or  that  he  had 
ordered  these  articles  to  be  furnished 
elsewhere,  the  circumstance  might  have 
rebutted  the  presumption  of  any  author- 
ity from  the  defendant  to  order  them 
from  the  plaintiff.  Nothing  however  of 
this  nature  had  been  proved  ;  and  since 
the  articles  themselves  were  necessary 
for  the  son,  and  suitable  to  that  situa- 
tion in  which  the  defendant  had  placed 
him,  it  was  for  tlie  jury  to  say,  whether 
they  were  not  satisfied  that  an  authority 
had  been  given  by  the  defendant." — 
This  was  soon  followed  by  Fluck  v.  Tol- 
lemache,  1  C  &  P.  5,  (1823,)  before  Bur- 
rough,  Justice  of  King's  Bench.  The 
defendant's  son  was  a  cadet  at  Wool- 
wich, the  father  living  at  Uxbridgc. 
Upon  being  written  to  to  pay  the  plain- 
tiff's bill,  which  was  the  first  knowledge 
the  defendant  had  of  the  transaction,  he 
said  he  had  ordered  no  goods  of  the 
plaintiff,  and  would  not  pay  for  any  sup- 
j)lied  to  his  son.  The  latter  was  fifteen 
years  old.  Burrough,  J.,  told  the  jury 
that  "  an  action  can  only  be  maintained 
against  a  person  for  clothes  supijlicd 
to  his  son,  either  when  he  has  ordered 
such  clothes,  and  contracted  to  pay  for 
them,  or  when  they  have  been  at  first 
furnished  without  his  knowledge,  and 
he  has  adopted  the  contract  afterwards ; 
such  adoption  may  be  inferred  from  his 
seeing  his  son  wear  the  clothes,  and  not 
returning  them,  or  making,  at  or  soon 
after  the  time  when  he  knows  of  their 
being  supplied,  some  objection.  Here 
the  only  knowledge  that  it  appeared  the 
defendant  had  of  the  transaction  was 
being  asked  for  the  money :  he  then  re- 
pudiated the  contract  altogether.  It 
would  be  rather  too  much  that  parents 
should  be  compellable  to  pay  for  goods 
that  any  tradesman  may.  without  their 
knowled<:e,  improvidently  trust  their 
sons  with." — In  Blackburn  v.  Ma<'kev, 
1  C.  &  P.  1,  (1823.)  before  .4Wo«.  Chief 
Justice  of  the  King's  Bench,  the  defend- 
ant's son  was  a  minor  living  away  from 


en.  xvr.J 


INFANTS. 


249 


father's  liability  is  nevertheless  admitted  in   many   English 
cases,  but  is   now  put  on  the  ground  of  agency ;   and  the 


his  father,  as  a  clerk  in  London,  receiv- 
inj^  a  (ruinea  a  week  as  wages.  The 
father  did  not  supply  the  son  with  any 
clothes,  and  it  was  proved  that  he  was, 
at  the  time  of  the  supply  by  the  plain- 
tiff, in  great  want  of  them.  The  de- 
fendant did  not  know  the  plaintiff,  and 
when  informed  of  the  supply  of  clothes 
to  his  son,  he  repudiated  the  contract 
altogether.  Abbott,  C-  J.,  told  the  jury 
that  a  father  was  not  bound  to  pay  for 
articles  ordered  by  his  son,  unless  he  had 
given  some  autliority.  express  or  im- 
plied.—In  Rolfe  V.  Abbott,  G  C.  &  P. 
286,  (1833.)  the  defendant's  son,  a 
j'oung  man  of  nineteen  years  of  age, 
and  having  a  situation  worth  £90  a 
year,  went  with  a  friend  who  introduced 
him  to  the  plaintiff,  a  tailor,  and  the  lat- 
ter suppHed  him  with  clothes,  and  soon 
after  sent  his  bill,  debiting  tiiem  to  the 
son  and  not  to  the  father.  The  friend  of 
the  minor  had  no  authority  from  the  fa- 
ther to  introduce  his  son  to  the  plaintitl", 
and  there  was  no  evidence  that  the  father 
knew  of  the  transaction.  In  summing  up 
to  the  jury,  Gitrney,  B.,  said:  —  "The 
question  in  this  case  is,  M'hether  these 
clothes  were  supplied  to  the  son  of  the 
defendant  by  the  assent  of  the  defendant. 
For.  to  charge  him,  it  is  essential  that  the 
goods  should  have  been  supplied  with 
his  assent  or  by  his  authority.  Indeed,  if 
the  law  were  not  so,  any  one  of  you  wlio 
had  an  imprudent  son  might  have  bills 
to  a  large  amount  at  the  tailor's,  the 
hatter's,  the  shoemaker's,  and  the  ho- 
sier's, and  you  know  nothing  at  all 
about  it."  —  Clements  v.  Williams,  8  C. 
&  P.  58,  (1837,)  was  an  action  by  a 
schoolmaster  against  a  guardian  for 
clothes  supplied  his  ward,  who  had  been 
placed  in  the  plaintiff's  school,  but  who 
had  not  been  provided  by  his  guardian 
with  clothes  for  upwards  of  a  year. 
The  schoolmaster  supplied  his  wants, 
and  charged  them  to  the  guardian,  with 
his  bill  for  tuition.  Williams,  J.,  told 
the  jury  that  he  was  not  aware  of  any 
authority  which  a  schoolmaster  had  to 
cause  his  pupil  to  be  supplied  with  arti- 
cles of  wearing  apparel  without  the 
sanction,  express  or  implied,  of  the  pa- 
rent or  guardian;  and  that  it  was  the 
duty  of  the  schoolmaster,  if  he  observed 
his  pupil  to  be  in  want  of  such  articles, 
to  communicate  that  fact  to  the  boy's 


friends,  and  not  to  furnish  him  with 
such  things  without  their  authority. — 
Seaborne  v.  Maddy,  9  C.  &  P.  497, 
(1840,)  is  also  a  very  strong  case  against 
the  parent's  liability.  This  was  an 
action  of  assumpsit  for  the  board  and 
lodging  of  the  defendant's  illegitimate 
child.  The  child  had  been  placed  with 
the  plaintiff  by  the  defendant  in  the 
year  1831,  at  2s.  a  week,  and  the  amount 
had  been  paid  down  to  the  month  of 
April,  1838.  The  child  remained  with 
the  pLiintiff  down  to  April,  1839,  and 
evidence  was  given  of  a  conversation  in 
the  month  of  May  following,  in  which 
it  was  alleged  that  the  defendant  had 
promised  payment  of  the  amount  claim- 
ed. The  defendant  gave  evidence  that 
at  the  time  of  settlement  in  1838  he  said 
the  plaintiff  was  to  give  up  the  child 
either  to  Mr.  Parkes  or  the  Union,  for 
he  would  pay  no  longer.  Evidence  was 
also  given,  that  on  several  occasions 
when  asked  for  payment  the  defendant 
refused  to  pay  any  tiling,  and  there  was 
also  contradictory  evidence  as  to  the 
conversation  in  May,  1839.  Parke,  Ba- 
ron, said:  —  "No  one  is  bound  to  pay 
another  for  maintaining  his  children, 
either  legitimate  or  illegitimate,  except 
he  has  entered  into  some  contract  to  do 
so.  Every  man  is  to  maintain  his  own 
children  as  he  himself  shall  think  pro- 
per, and  it  requires  a  contract  to  enable 
another  person  to  do  so,  and  charge  him 
for  it  in  an  action.  In  the  present  case 
there  had  been  a  contract  in  1831, 
which  was  put  an  end  to  in  1838.  How- 
ever, on  the  part  of  the  plaintiff,  it  is 
contended  that  a  new  contract  is  to  be 
inferred  from  the  conversation  with  the 
defendant  in  the  year  1839.  This  is 
for  you  to  consider.  But  you  must 
also  bear  in  mind  that  the  defendant  has 
on  several  occasions  distinctly  refused 
to  pay  any  thing,  and  that  as  to  one  of 
tlie  conversations  the  evidence  is  con- 
tradictorv."  —  The  case  of  Alortimore  i'. 
Wright,  6  M.  &  W.  482,  (1840,)  seems 
to  be  decisive  on  this  point.  Lord  Abin- 
ger,  C.  B.,  said:  —  "I  am  clearly  of 
opinion  that  there  was  no  evidence  for 
the  jury  in  this  case,  and  that  the  plain- 
tiff ought  to  have  been  nonsuited.  The 
learned  judge  was  anxious,  as  judges 
have  always  been  in  modern  times,  not 
to  withdraw   any  scintilla   of  evidence 

[259] 


250 


THE    LAW    OP    CONTRACTS. 


[BOOK   I. 


authority  of  the  infant  to  bind  the  father  by  contracts  for 
necessaries  is  inferred,  both  in  England  and  in  this  country, 
from  very  slight  evidence,  (p)     If  we  take  the  case  of  neces- 


from  the  juiy;  but  he  now  .agrees  with 
the  rest  of  the  court  th.it  there  ought  to 
have  been  a  nonsuit.  In  the  present 
instance  I  am  tlie  more  desirous  to  make 
the  rule  absolute  to  that  extent,  in  order 
that  there  may  be  no  uncertainty  as  to 
the  h\w  upon  "tliis  subject.  In  point  of 
law,  a  father  who  gives  no  authority, 
and  enters  into  no  contract,  is  no  more 
liable  for  goods  supplied  to  his  son  than 
a  brother.or  an  uncle,  or  a  mere  stran- 
ger would  be.  From  the  moral  oldi- 
gation  a  parent  is  under  to  provide  for 
his  children,  a  jury  are,  not  unnaturally, 
disposed  to  infer  against  him  an  admis- 
sion of  a  liability  in  respect  of  claims 
upon  his  son,  on  grounds  which  warrant 
no  such  inference  in  point  of  law.  .  .  . 
With  regard  to  the  case  in  the  Court  of 
King's  Bench  of  Law  v.  Wilkin,  if  the 
decision  is  to  be  taken  as  it  is  reported, 
I  can  only  say  that  I  am  sorry  for  it,  and 
cannot  assent  to  it.  It  may  have  been 
influenced  by  facts  which  do  not  appear 
in  the  report ;  but,  as  the  case  stands, 
it  appears  to  sanction  the  idea  that  a 
father,  as  regards  his  liability  for  debts 
incurred  by  his  son,  is  in  a  different 
situation  from  any  other  i-elative ;  which 
is  a  doctrine  I  must  altogether  dissent 
from.  If  a  father  does  any  specific  act, 
from  which  it  may  reasonably  be  infer- 
red that  he  has  authorized  his  son  to 
contract  a  debt,  he  may  be  liable  in  re- 
spect of  the  debt  so  contracted  :  but  the 
mei'e  moral  obligation  on  the  father  to 
maintain  his  child  affords  no  inference 
of  a  legal  promise  to  pay  his  debts  ;  and 
we  ought  not  to  put  upon  his  acts  an 
interpretation  wliich  abstractedly,  and 
without  reference  to  that  moral  obliga- 
tion, they  will  not  reasonably  warrant. 
In  order  to  bind  a  father,  in  point  of 
law,  for  a  debt  incurred  by  his  son,  you 
must  prove  that  he  has  contracted  to  be 
bound,  just  iu  the  same  manner  as  you 
would  prove  such  a  contract  against 
any  other  person ;  and  it  would  bring 
the  law  into  great  uncertainty  if  it  were 
permitted  to  juries  to  impose  a  liability 
in  each  particular  case,  according  to 
their  own  feelings  or  prejudices."  Parke, 
B.,  added,  "  It  is  a  clear  principle  of 
law  that  a  father  is  not  under  any  legal 
obligation  to  pay  his  son's  debts." — And 

[260] 


in  Shelton  v.  Springctt,  20  E.  L.  &  E. 
281,  the  same  principles  are  I'citerated; 
and  the  law  declared  to  be  well  settled 
that  without  some  contract  express  er 
implied  the  father  is  not  li.able  for  neces- 
saries supplied  to  the  son.  Jeivis,  C.  J., 
says,  "  If  a  father  turns  his  son  upon  the 
world  the  son's  only  resource  in  the  ab- 
sence of  any  thing  to  show  a  contract  on 
the  father's  part,  is  to  apply  to  the  parish, 
and  then  the  proper  steps  will  be  taken 
to  enforce  the  performance  of  the  pa- 
rent's legal  duty." 

{p)  This  may  be  inferred  from  some 
of  the  cases  we  have  already  cited ;  but 
it  was  doubted  in  Mortimore  v.  Wright, 
whether  Law  v.  Wilkin,  and  Blackburn 
V.  Mackey  were  law.  And  in  Shelton 
r.  Springett  where  the  father  had  given 
his  son  5/.  and  sent  him  to  London  to 
look  out  for  a  ship,  telling  him  to  put 
up  at  a  particular  hotel,  but  the  son  put 
up  at  another,  upon  which  evidence  the 
jury  had  found  a  verdict  against  the 
father  for  the  son's  board,  the  verdict 
was  set  aside  and  a  nonsuit  ordered  on 
the  ground  that  there  was  no  evidence 
to  warrant  a  iury  in  holding  the  father 
liable.  In  Forsyth  v.  Milne,  (1808,) 
cited  in  IMacpherson  on  Infants,  p.  511, 
the  defendant's  wife,  in  his  absence  and 
without  his  knowledge,  contracted  with 
a  third  person  for  the  board  of  their 
minor  daughter.  The  defendant  paid 
the  bill,  but  expressed  some  dis.appro- 
bation  of  it.  The  mother  removed  the 
daughter  to  another  situation ;  it  was 
held  that  the  first  payment  so  far  ac- 
knowledged the  discretionary  power  of 
the  wife  to  contract,  as  to  m.ake  the 
father  liable  to  the  plaintiff"  upon  the 
second  contract.  —  In  Bryan  r.  Jackson, 
4  Conn.  288,  (1822,)  where  the  de- 
fendant's minor  son  had  taken  up  goods 
of  the  plaintiff',  which  the  defendant  paid 
for,  without  objection,  or  giving  notice 
not  to  trust  his  son  any  further,  and  the 
son  afterwards  took  up  other  goods  of  a 
similar  nature ;  it  was  held  that  the  pay- 
ment so  made  by  the  defendant  was 
equivalent  to  a  recognition  of  his  son's 
authority,  and  rendered  the  defendant 
liable  for  the  goods  subsequently  taken 
up,  although  he  had  (but  without  the 
plaintiff"'s  knowledge,)  given  positive  or- 


CH.  XVI.j 


INFANTS. 


251 


saries  supplied  to  an  infant  actually  incapacitated  by  want 
of  age,  or  by  disease  of  mind  or  body,  from  raaldng  any  con- 
tract, or  acting  in  any  way  as  the  agent  of  any  person,  the 
father  cannot  be  made  liable  excepting  on  the  ground  of  his 
parental  obligation  ;  and  there  are  cases,  or  rather  dicta  in 
some  cases  which  might  indicate,  perhaps,  that  the  queslion 
would  be  decided  in  England  in  favor  of  this  liability  on  his 
part,  if  it  were  necessary.  It  will  be  noticed,  that  where  it 
is  most  distinctly  denied  that  this  moral  obligation  of  the 
parent  constitutes  a  legal  obligation,  the  denial  is  confined 
to  a  liability  for  the  coiitracts  of  the  child.  The  reason  is 
said  to  be,  the  danger  of  permitting  a  father  to  be  bound  in 
this  way,  and  it  is  variously  illustrated  in  the  cases;  but  this 
reason  fails  where  the  infant  can  make  no  contracts,  and  must 
be  supplied  or  suffer. 

In  this  country,  the  rule  of  law  varies  in  the  different  States. 
In  most  of  them  in  which  the  question  has  come  before  the 
courts,  the  legal  liability  of  the  parent  for  necessaries  fur- 


ders  to  his  son  to  contract  no  more 
debts,  and  had  placed  him  under  the 
care  of  a  friend,  with  instructions  to  fur- 
nish him  with  every  thing  necessary  and 
suitable  for  him.  See  also  McKenzie  v. 
Stevens,  19  Ala.  691.  —  It  was  held  in 
Nichole  v.  Allen,  3  C  &  P.  36.  (1827,) 
that  if  a  parent  knew  that  a  third  person 
was  maintaining  his  minor  child,  al- 
though illegitimate,  and  expressed  no 
dissent,  lie  is  liable,  unless  he  show  that 
the  child  is  there  against  his  consent; 
but  this  case  was  afterwards  denied  in 
Mortimore  i-.  Wright.  —  In  Rumney  v. 
Keyes,  7  New  Hamp.  571,  (1835.)  it  was 
held,  that  if  a  husband,  living  in  a  state 
of  separation  from  his  wife,  suffers  his 
children  to  reside  with  the  mother,  he  is 
liable  for  necessaries  furnished  them, 
and  she  is  considered  as  his  agent  to 
contract  for  this  purpose.  And  see 
Rawlyns  v.  Vandyke,  3  Esp.  250,  (1800.) 
In  Deane  v.  Annis.  14  Maine.  26, 
(1836,)  the  defendant's  minor  son  left, 
his  father's  home  against  his  will,  and 
refused  to  return  to  it  upon  his  father's 
commands.  Being  afterwards  taken 
sick,  however,  he  did  return,  and  re- 
mained until  his  death.  During  his 
sickness  his  father  went  with  him  to  the 
plaintiff's  house  to  obtain  medical  ad- 
vice, and  the  plaintiff"  afterwards  visited 


the  boy  professionally  at  his  father's 
house.  No  express  promise  was  proved 
to  pay  the  plaintiff,  nor  did  the  father 
notify  him  that  he  did  not  expect  to  pay 
him.  The  father  was  held  liable  for  the 
plaintiff"s  services. —  The  case  of  Thayer 
v.  White,  12  Met.  343,  (1847,)  has  "an 
important  bearing  upon  the  point  of 
implied  liability.  It  does  not  appear  in 
that  case  that  the  defendant's  son  was  a 
minor,  nor  were  the  goods  bought  by 
the  son  necessaries,  but  the  facts  were 
that  a  son,  who  had  several  times,  with 
his  father's  express  consent,  bought 
goods  of  T.  in  the  name  and  on  the  cre- 
dit of  his  father,  again  bought  goods  of 
T.  in  the  name  of  his  father,  on  six 
months'  credit :  T.  charged  the  goods  to 
the  father,  and  immediately  wrote  a  let- 
ter to  him,  informing  him  thereof,  and 
stating  that  he  supposed  it  was  correct, 
but  thought  proper  to  give  him  notice. 
The  father  made  no  reply  to  this  letter. 
Field,  in  a  suit  by  T.  against  the  father, 
for  the  price  of  the  goods,  that  the  jury 
were  warranted  in  inferring,  from  the 
father's  silence,  his  consent  to  the  trans- 
action thus  notified  to  him.  Held  also, 
that  such  consent  was  proof  either  of  an 
original  authority  to  the  son,  or  of  a 
subsequent  affirmance  by  the  father, 
which  bound  him  to  pay  for  the  goods. 

[261] 


252'' 


THE   LAW    OF   CONTRACTS. 


BOOK  I' 


nishcd  to  the  infant,  is  asserted,  unless  they  are  supplied  by 
the  father;  and  it  is  put  on  the  ground  that  the  moral  obli- 
gation is  also  a  legal  one,  and  some  of  our  courts  have  de- 
clared this  quite  strongly,  (r/)  In  other  States  the  present 
*  English  rule  has  been  declared  to  be  law,  and  agency  and 
authority  are  held  to  be  the  only  ground  of  such  liability,  (r) 


(q)  See  Stanton  v.  Wilson,  3  Day, 
37,  (1808.)  In  tliis  case  the  father  liad 
been  divorced  from  the  plaintiff,  Ids 
former  wife,  and  two  of  their  children 
■were  ordered  into  iier  custody  as  guar- 
dian. A  third  remained  with  his  father 
(the  defendant,)  for  a  few  years,  when 
through  fear  of  personal  violence  and 
abuse  from  his  father  he  fled,  and  went 
to  live  with  his  mother  and  her  second 
husband,  who  furnished  him  with  sup- 
port and  education.  The  action  was 
brought  to  recover  for  the  support  of 
the  three  children.  "  It  was  agreed 
that  the  whole  of  the  charges  accrued 
without  any  request  from  the  father, 
and  that  he  never  made  any  express 
promise  to  pay  them."  The  court  (two 
judges  dissenting,)  held  the  father  liable 
for  the  whole  bill,  saying:  —  "Parents 
are  bound  by  law  to  maintain,  protect, 
and  educate  their  legitimate  children 
during  their  infancy.  This  duty  rests 
on  the  father.  But  because  the  father 
has  abandoned  his  duty  and  trust,  by 
putting  the  child  out  of  his  protection,  he 
cannot  thereby  exonerate  himself  from 
its  maintenance,  education,  and  support. 
The  duty  remains,  and  the  law  will  en- 
force its  performance,  or  there  must  be 
a  failure  of  justice.  The  infant  cast  on 
the  world  must  seek  protection  and 
safety  where  it  can  be  found  ;  and 
where  with  more  propriety  can  it  apply 
than  to  the  next  friend,  nearest  relative, 
and  such  as  are  most  interested  in  its 
safety  and  happiness  ?  The  father  hav- 
ing forced  his  child  abroad  to  seek  a 
sustenance  under  such  circumstances, 
sends  a  credit  along  with  him,  and  shall 
not  be  permitted  to  say  it  was  furnished 
without  his  consent,  or  against  his  will." 
But  see  Finch  v.  Finch,  22  Conn.  411, 
post  note  (u).  In  the  case  of  Edwards  i'. 
Davis,  16  Johns.  284,  it  was  decided 
that  there  was  no  common-law  obliga- 
tion requiring  a  child  to  support  a  pa- 
rent; but  Spencer,  J.,  in  delivering  the 
opinion  of  the  court,  said  :  —  "  The  duty 
of  a  parent  to  maintain  his  offspring, 
until  they  attain  the  age  of  maturity,  is 

[262] 


a  perfect  common-Jaiv  duty."  In  the  mat- 
ter of  Kydcr,  11  Paige,  187,  Wal north, 
Ch.,  says:  —  "A  parent  who  has  the 
means  is  undoubtedly  bound  to  support 
his  or  her  minor  ciiild.'"  See  also  Ben- 
son V.  Ecmington,  2  Mass.  113;  Whip- 
ple V.  Dow,  2  Mass.  41.5;  Dawes  v. 
Howard,  4  Mass.  97  ;  Van  Valkinburgh 
V.  Watson,  13  Johns.  480;  Pidgin  v. 
Cram,  8  New  Hamp.  3.53 ;  2  Kent's 
Com.  193;  Call  v.  Ward,  4  Watts  & 
Serg.  118. 

(r)  In  Hunt  v.  Thompson,  3  Scam. 
180,(1841.)  tF(7so«,  C.  J.,said:  — -'That 
a  parent  is  under  an  obligation  to  pro- 
vide for  the  maintenance  of  his  infant 
children,  is  a  principle  of  natural  law; 
and  it  is  upon  this  natural  obligation 
alone  that  the  duty  of  a  parent  to  pro- 
vide his  infant  children  with  the  neces- 
saries of  life  rests ;  for  there  is  no  rule 
of  municipal  law  enforcing  this  duty. 
The  claim  of  the  wife  upon  the  husband, 
for  necessaries  suitable  to  his  rank  and 
fortune,  is  recognized  by  the  principles 
of  the  common  law,  and  by  statute.  A 
like  claim  to  some  extent  may  be  en- 
forced in  favor  of  indigent  and  infirm 
parents,  and  other  relatives,  against 
children,  &c.,  in  many  cases ;  but,  as  a 
general  rule,  the  obligation  of  a  parent 
to  provide  for  his  offspring  is  left  to  the 
natural  and  inextinguishable  affection 
which  Providence  has  implanted  in  the 
breast  of  every  parent.  This  natural 
obligation,  however,  is  not  only  a  suffi- 
cient consideration  for  an  express  pro- 
mise bj'  a  father  to  pay  for  necessaries 
furnished  his  child,  but  when  taken  in 
connection  with  various  circumstances 
has  been  held  to  be  sufficient  to  raise  an 
implied  promise  to  tliat  effect  But 
either  an  express  promise,  or  circum- 
stances from  which  a  promise  by  the 
father  can  be  inferred,  are  indis])ensably 
necessary  to  bind  the  ])arent  for  neces- 
saries furnished  his  infant  child  by  a 
third  person."  —  Owen  v.  White,  5  Por- 
ter, 435,  (1837,)  seems  to  deny  the  legal 
obligation  of  the  father,  except  on  a 
contract,  express  or  implied ;   but  ad- 


CH.  XVI.] 


INFANTS. 


253 


The  law  can  hardly  be  considered  as  positively  settled 
either  in  England  or  in  this  country.  But  we  would  state, 
as  strongly  prevailing  rules  here,  that  where  goods  are  sup- 
plied to  an  infant  which  are  not  necessaries,  the  father's  aa- 
thority  must  be  proved  to  make  him  liable ;  where  they  are 
necessaries  the  father's  authority  is  presumed  unless  he  sup- 
plies them  himself,  or  was  ready  to  supply  them;  where  the 
infant  lives  with  the  father,  or  under  his  control,  his  judgment 
as  to  what  are  necessaries  will  be  so  far  respected,  that  he 
will  be  held  liable  only  for  things  furnished  to  the  infant  to 
relieve  him  from  absolute  want ;  where  the  infant  does  not  live 
with  the  father,  but  has  voluntarily  left  him,  the  authority  of 
the  father  must  be  strictly  proved,  unless,  perhaps,  in  cases  of 
absolute  necessity  ;  and  where  he  has  been  deserted  by  the 


niits  that  such  contract  is  imph'etl  where 
the  father  fails  in  his  duty  to  support 
the  clyld,  or  drives  him  from  home. 
Then  the  father  is  "  liable  for  a  suitable 
maintenance."  In  Varney  v.  Young, 
11  Verm.  258,  (1S39,)  the  court  appear 
to  deny  altogether  that  the  moral  obli- 
gation of  the  father  constitutes  any  legal 
obligation.  Bennett,  J.,  says  :  —  "  There 
must  he  proof  of  a  contract,  express  or 
implied,  a,  prior  authority,  or  a  subsequent 
recognition  of  the  claim."  —  Perhaps  the 
strongest  case  in  the  American  reports, 
against  the  liability  of  the  father,  is 
Gordon  v.  Potter,  17  Verm.  .350,  (1845.) 
There  the  defendant  told  his  minor  son 
in  the  spring  to  go  out  to  work,  and  in 
the  fall  he  would  get  him  some  winter 
clothes.  The  son  went  to  service  at 
monthly  wages.  In  June  following,  the 
plaintiff  furnished  him  with  cloth  and 
trimminrjs  for  a  suit  of  clothes.  The 
father  knew  of  this  purchase  by  the  son, 
and  furnisJud  Imn  money  to  pay  for  mak- 
ing them  uj) ;  he  also  permitted  him  to 
wear  out  the  clothes.  It  did  not  clearly 
appear  whether  the  plaintiff  furnished 
the  goods  upon  the  son's  or  the  father's 
credit.  And  this  might  have  been  a 
sufficient  ground  for  the  decision  itself; 
but  licdjield,  J.,  went  much  further,  and 
said: — ••  Biit  there  is  one  defect  in  the 
case,  which  we  think  must  clearly  and 
indisputably  preclude  any  recovery 
against  the  father.  It  does  not  appear 
that  the  father  ever  gave  the  son  any 
authority,  either  expressly  or  by  impli- 


cation, to  pledge  liis  credit  for  the  arti- 
cles ;  but  the  contrary.  And  unless  the 
father  can  be  made  liable  for  necessa- 
ries for  his  infant  child,  against  his  own 
will,  then,  in  this  case,  the  plaintiff 
must  fail  to  recover.  I  know  there  are 
some  cases,  and  dicta  of  judges,  or  of 
elementary  writers,  which  seems  to  jus- 
tify the  conclusion  that  the  parent  may 
be  made  liable  for  necessaries  for  his 
child,  even  against  his  own  will.  But 
an  examination  of  all  the  cases  upon 
this  subject  will  not  justify  any  such 
conclusion."  After  critically  examining 
the  American  and  English  authorities, 
he  concluded  : — "  It  is  obvious  that  the 
law  makes  no  provision  for  strangers 
to  furnish  children  with  necessaries, 
against  the  will  of  parents,  even  in  ex- 
treme cases.  For  if  it  can  be  done  in 
extreme  cases  it  can  be  done  in  every 
case  where  the  necessity  exists ;  and  the 
right  of  a  parent  to  control  his  own 
child  will  depend  altogether  upon  his 
furnishing  necessaries,  suitable  to  the 
varying  taste  of  the  times.  There  is  no- 
stopping-place  short  of  this,  if  any  inter- 
ference whatever  is  allowed.  If  "the  pa- 
rent abandons  the  child  to  destitution, 
the  public  authorities  may  interfere, 
and,  in  the  mode  pointed  out  by  the 
statute,  compel  a  proper  maintenance. 
But  this,  according  to  the  English  com- 
mon law,  which  prevails  in  this  State, 
is  not  the  right  of  every  intermeddling 
stranger." 


[263] 


254*  '  THE    LAW    OF    CONTRACTS.  [bOOK  T. 

father,  or  driven  away  from  him,  either  by  command  or  by 
cruel  treatment,  there  the  infant  carries  with  him  the  credit 
and  authority  of  the  father  for  necessaries.  And  wherever 
the  question  is  how  far  the  father  is  liable  for  necessaries 
supplied  to  the  child,  this  word  "  necessaries"  will  not  gene- 
rally be  understood  in  the  very  liberal  sense  given  to  it  when 
the  question  is  as  to  the  capacity  of  the  infant  to  contract,  but 
will  be  interpreted  according  to  the  circumstances  of  the  case. 
And  if  the  child  be  of  sufficient  age  and  strength  to  earn  by 
proper  exertions  the  whole  or  a  part  of  his  subsistence,  it  will 
not  be  deemed  "necessary"  that  the  aid  should  be  rendered 
to  him  which  it  would  be  "necessary"  to  give  to  an  infant 
incapacitated  by  tender  years,  or  by  debility  of  mind  or  body, 
from  contributing  to  his  own  support. 

So  far  as  the  duty  of  support  certainly  belongs  to  the 
parent  as  a  legal  obligation,  and  is  neglected,  any  other  per- 
son may  perform  it,  and  will  be  regarded  as  performing  it  for 
him  ;  and,  on  general  principles,  the  law  will  raise  a  promise 
on  the  part  of  the  parents,  to  compensate  the  party  who  thus 
did  for  him  what  he  was  bound  by  law  to  do.  (s)  But  this 
rule  is  carried  no  farther  than  its  reason  extends;  and  is 
guarded  by  many  restrictions  from  becoming  the  means  of 
injury  to  the  parent.  Thus,  we  have  seen  that  if  the  child 
be  living  with  the  parent,  or,  as  it  is  said  in  some  cases,  if  he 
be  sub  polestate  parentis,  the  law  will  not  presume  that  the 
parent  neglects  the  child,  but  will  presume  a  due  care  of  him, 
until  the  contrary  is  shown ;  and  of  the  propriety  and  suffi- 
ciency of  the  clothing,  &c.,  the  parents  must  judge;  and  if  a  ^ 
stranger  under  such  circumstances  supplies  the  child  even 
with  necessaries  he  certainly  cannot  hold  the  parent  upon  the 
contract  implied  by  his  duty,  without  proving  a  clear  and 
unquestionable  abandonment  and  neglect  of  that  duty.  But 
if  the  supplier  seeks  to  make  the  parent  responsible,  on  the 
ground  that  his  authority  was  given  to  the  child,  then,  if  the 

(s)  In  the  matter  of  Ryder,  11  Paige,  part  of  the   parent,   in   supplying   the 

188,    Wabrorlh,  Ch.   says: — "A  stran-  child  with  necessaries."    E(jiially  strong 

ger   may    furnish     necessaries    for   the  are    Van    Valhinburg   v.    Watson,    13 

child,  and  recover  of  the  parent  compen-  Johns.  4S0,  and  Pidgin  v.  Cram,  8  New 

sation  therefor,  where  there  is  a  clear  Ham.  350. 
and  palpable  omission  of  duty,  on  the 

[-264] 


CU.   XVI.]  INFANTS.  *255 

goods  supplied  were  necessaries,  it  would  seem  from  the  cases, 
as  we  have  said,  that  slight  evidence  is  sufficient  to  prove 
such  authority ;  as  that  the  father  saw  the  son  wear  the 
clothes,  or  knew  that  he  had  received  them,  and  made  no  ob- 
jection. But  if  the  things  supplied  are  strict  and  absolute 
necessaries,  needful  for  the  child's  subsistence,  or  if  the  child 
is  living  away  from  the  parent,  under  circumstances  which 
indicate  a  desertion  by  the  parent,  or  that  the  child  has  been 
expelled  from  his  house,  or  caused  to  leave  it  by  the  wrongful 
acts  of  the  parents,  then  the  authorities  and  dicta  to  which 
*  we  have  referred  lead  to  the  conclusion  that  whoever  supplies 
the  wants  of  the  child  may  recover  from  the  parent,  [t)  But 
it  has  been  held  in  England  that  a  father  was  under  no  legal 
obligation  to  educate  his  child,  and  could  not  be  made  liable 
for  the  expenses  of  his  instruction,  where  the  wife,  being 
cruelly  treated  at  the  husband's  house,  left  it,  taking  the  child- 
ren with  her.  Precisely  this  question  has  not  occurred  in 
this  country,  but  the  weight  and  tendency  of  authorities 
would  not  require  us  to  believe  that  the  decision  would  be 
the  same  here  as  in  England.  If  the  wife  be  divorced,  with 
alimony,  and  the  care  of  the  children  be  given  to  her,  the 
father  has  been  held  liable  not  only  to  her  for  the  expenses 
she  incurs  in  their  support  and  education,  but  also  to  a  stran- 
ger whom  she  marries,  and  who  continues  to  support  the 
children.  (//)     And  where  the  father  and  mother  separate,  and 

(<)  We   are  unable  to   discriminate  We  have  some  doubts,  therefore,  whe- 

these   cases,     on    principle,   from   any  tlier  even  this  exception  would  always 

which  may  occur,  in   which  compensa-  be  allowed.    Indeed,  we  are  disposed  to 

tion  is  sought  of  a  father  for  things  sup-  regard  the  rule  of  law,  in  this  country, 

plied  to  an  infant,  which  were  absolutely  generally,  if  not  universally,  as  imposing 

needed  for  his  subsistence,  and  wliich  a  liability  on  the  father  for  all  supplies 

the  child   would   not  have   had   unless  to  an  infant,  which  were  so  absolutely 

they    were    supplied    by    a     stranger,  needed  that  he  must  have  them  or  per- 

Where  the  infant  has  unnecessarily  and  ish.     The  liability  might  be  put  on  dif- 

in  his  own  wrong  left  his  parent,  and  re-  ferent  grounds  in  different  courts, — in 

nounced  the  filial  relation,  it  seems  to  some  on  the  ground  of  contract  and  of 

be  held  that  the  liability  of  the  parent  implied  authority,  and  in  others  on  the 

ceases.    But   in   the  principal   case   in  legal   obligation    growing  out   of    the 

which  this  is  directly  decided,  (Angel  v.  moral  obhgation,  —  but  on  some  ground 

McLellan,  16  Mass.  28,)  the  child  had  or  other  we  think  it  would  generally  be 

absconded  to  avoid  arrest  for  felony ;  enforced. 

and  although  the  case  finds  that  ••he  (u)  Stanton r.  Willson,  3 Day, .37.  But 
was  in  distress  in  a  foreign  country,"  this  case  was  commented  upon  and  de- 
it  does  not  appear  that  he  might  not  nied  in  Finch  v.  Finch,  22  Conn.  411, 
have  supported  himself  by  labor,  or,  in  and  it  was  decided  by  a  majority  of  the 
other  words,  that  the  things  supplied  court  that  a  divorced  wife  could  not 
were  strict  and  absolute  necessaries,  maintain  an  action  against  her  former 
VOL.  I.                                 23  [265] 


256*  THE   LAW   OF   CONTRACTS.  [BOOK  I. 

the  father  permits  the  mother  to  take  the  children  with  her, 
then  the  father  constitutes  the  mother  his  agent  to  provide 
for  his  children,  and  is  bound  by  her  contract  for  necessaries 
for  them,  (v)  There  is,  indeed,  authority  for  holding  that  if 
a  parent  of  sufficient  ability  to  provide  suitably  for  his  child- 
ren neglect  to  do  so,  he  is  guilty  of  an  indictable  offence,  (w;) 

It  becomes  a  different  question  when  the  child  has  an  inde- 
pendent property  sufficient  for  his  own  maintenance;  what 
then  is  the  father's  obligation  ?  It  would  seem  that  the  rule 
*of  law  was  formerly,  that  if  the  parent  had  abundant  means 
himself,  he  was  bound  to  provide  for  his  children,  even  if  they 
had  independent  property,  (x)  And  this  rule  is  enforced 
even  now  in  some  instances,  (y)  It  is  however,  in  general, 
relaxed ;  and  courts  go  far  in  appropriating  the  means  of  the 
child  to  his  own  support,  although  the  father  may  also  be 
entirely  able  to  maintain  him.  (c)  And  where  the  father  is 
without  ineans  to  educate  and  support  his  children  in  a 
manner  which  is  rendered  suitable  by  their  position  and  ex- 
pectations, courts  of  equity  will  not  only  make  an  allowance 
out  of  the  estate  of  the  children,  but  will,  if  necessary,  take 
from  the  principal  of  a  vested  legacy  for  the  proper  main- 
tenance and  education  of  the  legatee,  (a)  Such  decrees  are 
usually  made  for  the  future  maintenance  of  the  child ;  but  it 
cannot  be  said  that  there  is  a  positive  rule  preventing  retro- 
spective allowances,  (b) 

Whether  the  mother  is  under  an  equal  obligation  with  the 
father  to  maintain  the  child,  the  father  being  dead,  seems  not 
to  be  quite  certain ;  but  the  weight  of  authority,  both  in 
England  and  in  this  country,  might  perhaps  justify  the  con- 
clusion that  she  is  not  under  a  legal  obligation,  (c)  or  that  it 

husband  to  recover  for  the  support  of  52;  Mabcrly  v.  Turton,    14  Ves.  499 ; 

their   infant   children,   the   custody   of  Simon  v.  Barber,  1  Tamlyn,  22. 

whom  was  awarded  to  her.   Two  of  the  (a)  Newport  v.    Cook,   2   Ashraead, 

five  judges,  however,  adhered  to  the  de-  332 ;  Ex  parte  Green,  1  Jac.  &  Walk, 

cision  of  Stanton  17.  Willson.  253.     See   also    Carter  v.  Eollard,   11 

(v)  Eawlyns    v.    Vandyke,    3    Esp.  Humph.  339. 

251.  (b)  In  the  matter  of  Kane,  2  Barb. 

(w)  Eex  V.  Friend,  Russ.  &  Ey.  C.  Ch.  R.  375. 

C.  20.  (c)  The  chancery  cases  which  assert 

{x)  Dawes  v.  Howard,  4  Mass.  97.  this  obligation,  appear  to  do  so  on  the 

(y)  In  the  matter  of  Kane,  2  Barb,  ground   of  the  ability  of  the   mother 

Ch.  ii.  375.  and  the  need   of   the   children.      See 

(s)  Jervoise  17.  Silk,  Cooper,  Eq.  Rep.  Hughes  r.   Hughes,   1   Bro.   Ch.  387. 

[266] 


CH.   XVI.]  INFANTS.  *257 

is  very  greatly  qualified  in  important  particulars.  Thus,  if 
the  child  has  property,  the  mother  is  not  bound  for  the  child's 
maintenance  where  the  father  would  be.  (^d)  And  a  court  of 
*  equity  has  refused  to  compel  a  mother  to  furnish  the  means 
of  educating  a  child,  even  where  she  was  entirely  able  to  do 
so  ;  and  it  is  even  said  that  the  court  have  no  power  to  do 
this,  (e)  A  husband  is  not  responsible  for  the  child  of  his 
wife  by  a  former  husband,  unless  he  takes  him  into  his  house ; 
but  if  he  does  he  assumes,  perhaps,  the  responsibility  for  his 
maintenance,  so  long  as  he  retains  him  as  one  of  his  fand- 
ly.  (/)  But,  on  the  other  hand,  the  relation  which  he  in  this 
case  sustains  to  the  child  rebuts  any  presumption  which 
might  otherwise  exist,  of  a  promise  or  obligation  to  pay  the 
child  for  his  services,  (g)  as  in  the  case  of  his  own  child- 
ren, (gg-) 

Where  the  parent  is  thus  obliged  to  provide  for  the  child 
a  home,  and  a  sufficient  maintenance,  so,  on  the  other  hand, 
he  has  a  right  to  the  custody  of  the  child  during  his  minority, 
and  is  entitled  to  all  his  earnings,  (h)  For  these  two  things, 
this  obligation  and  this  right,  go  together.  .  Thus,  if  the 
father  separates  from  the  mother,  and  permits  the  child  to 
leave  him  and  go  with  her,  he  is  no  longer  entitled  to  the 
earnings  of  the  child,  and  has  no  powder  to  avoid  his  reason- 
able contracts ;  (i)  and  therefore  the  son  may  in  such  case 

In  Benson  v.  Eemington,  2  Mass.  113,  Barb.  Sup.   Ct.  483;  Pray  v.  Gorham, 

the  court  say  : — '•  The  law  is  very  well  31  Maine,  241  ;  Commonwealth  v.  Mur- 

settled  that  parents  are  under  obligations  ray,  4  Binn.  487. 

to  support  their  children,  and  that  they  (d)  In  Dawes  v.  Howard,   4   Mass. 

are   entitled   to    their    eai-nings."      In  97,  it  is  said  that  where  minor  children 

Nightingale  v.  Withington,    15   Mass.  have  property  of  their  own,  the  father 

274,  Parker,  C.  J.,  says  : — "  Generally  is,  notwithstanding,  bound  to  support 

the  father,  and  in  case  of  his  death  the  them,  if  of  ability;  but  it  is  otherwise 

mother,  is  entitled  to  the  earnings  of  with  the  mother. 

their  minor  children.     This  right  must  (e)  In  the  matter  of  Ryder,  11  Paige, 

be  founded  upon  the  obligation  of  the  185. 

parents  to   nurture  and   support  their  (/)  Stone  v.  Carr,  3  Esp.  1  ;  Cooper 

children."     But  it  is  only  a  dictum  in  v.  Martin,  4  East,  82;  Tubb  v.  Harri- 

eithcrcase;  and  in  neither  do  the  court  son,  4  Term  R.  118;  Freto  y.  Brown, 

refer  to  any  authority  whatever  for  this  4  Mass.  635 ;  Minden  v.  Cox,  7  Cow.  235. 

rule;  nor  arc  we  aware  of  any  direct  {(/)  Williams  v.  Hutchinson,  5  Barb. 

adjudication,  in  which  it  is  determined  Sup.  Ct.  122,  3  Corast.  312. 

as  the  point  of  the  case,  that  the  mo-  (c/g)  See  post,  Book  III.,  Chap.  IX., 

thcr  and  the  father  stand  on  the  same  Sect.  I. 

fooling  in    this   respect.     See,   against  (/()   See  note  c,  S!//jra. 

the  mother's  obligation,  Tilton  v.  Rus-  (()  Wodell  v.  Coggeshall,  2  Met.  89  ; 

sell,  11  Ala.  407  ;  Raymond  v.  Loyl,  10  Chilson  v.  Philips,  1  Verm.  41. 

[267] 


258*  THE   LAW    OF   CONTRACTS.  [BOOK  I. 

make  a  special  contract  with  his  employer,  which  is  valid 
against  the  father's  will.  And  if  the  parent  be  himself  an 
insane  person  and  a  pauper,  and  therefore  under  no  obliga- 
tion to  maintain  the  child,  he  is  not  entitled  to  the  child's 
earnings,  nor  is  the  town  which  supports  the  parent  entitled 
to  receive  the  child's  wages,  so  long  as  the  child  himself  is 
not  a  pauper,  (u)  And  it  has  been  said  that  wherever  the 
son  is  not  living  with  the  father,  the  son  may  of  necessity  be 
entitled  to  receive  the  wages  of  his  labor,  and  that  the  father's 
consent  to  the  son's  receipt  and  appropriation  of  them  would 
be  inferred  in  such  case  from  very  slight  circumstances,  (j) 

It  is  certain  that  a  father  may,  by  an  agreement  with  his 
minor  child,  relinquish  to  the  child  the  right  which  he  would 
otherwise  have  to  his  services,  and  may  authorize  those  who 
employ  him  to  pay  him  his  wages,  and  will  then  have  no 
right  to  demand  those  wages,  either  from  the  employer  or 
from  the  child,  (k)  And  such  an  agreement  may  be  inferred 
*from  circumstances  ;  as  where  a  father  left  his  child  to  ma- 
nage his  own  affairs,  and  make  and  execute  his  own  con- 
tracts for  a  considerable  time.  (/)  Or  even  if  the  father  knew 
that  the  son  had  made  such  a  contract  for  himself,  and  inter- 
posed no  objection,  (m)  And  it  has  been  held  that  an  infant 
whose  father  is  dead,  and  whose  mother  has  married  again, 
is  entitled  to  his  own  earnings,  (n) 

It  is  very  common  in  this  country  to  see  in  the  newspapers 
an  advertisement  signed  by  a  father,  stating  that  he  has 
given  to  his  minor  son  "  his  time,"  and  that  he  will  make  no 
future  claim  on  his  services  or  for  his  wages,  and  will  pay  no 
debts  of  his  contracting.  Such  a  notice  would  undoubtedly 
have  its  full  force  in  reference  to  any  party  to  whom  a  know- 
ledge of  it  was  brought  home.  And  if  a  stranger,  not  know- 
ing this  arrangement,  should  employ  the  son,  he  might   still 

(u)  Jenness   v.  Emerson,   15   N.  H.  a   part  as   well   as  the  ■whole   of   his 

486.  time. 

(j)  Gale  V.  Parrott,  1  NewHamp.  28.  (/)  Canovar  v.  Cooper,  3  Barb,  Sup 

(k)  Jenney  I'.  Alden,  12  Mass.  375;  Ct.  115;    Clinton  v.    York.  26  Maine 

Morse  v.  Welton,  6  Conn.  547 ;  Whi-  167;  Stiles  v.  Granville,  6  Cush.  458 

ting  I'.  Earle,  3  Pick.  201  ;  Varney  v.  Wodell    r.    Coggeshall.    2    Mete.    91 

Young,   11   Verm.  258;  Eurlingame  i-.  Cloud  v.  Hamilton,  II  Humph.  104. 

Burlingame,   7  Cow.  92.     In  Tillotson  {in)   Whiting  v.  Earle,  3  Pick.  201 

V.  McCrillis,   11  Verm.  477,  it  is  held  Armstrong  t'.  McDonald,  10  Barb.  300 

that  a  father  may  give  to  his  minor  son  (n)  Freto  v.  Brown,  4  Mass.  675. 
[268] 


CH.   XVI.]  INFANTS.  *259 

interpose  it  as  a  defence  if  the  father  claimed  the  son's 
wages.  But  if  a  stranger  supplied  a  son,  at  a  distance  from 
his  home,  with  suitable  necessaries,  in  ignorance  of  such  ar- 
rangement, there  is  no  sufficient  reason  for  holding  that  it 
would  bar  his  claim  against  the  father.  And  we  think  that 
he  might  recover  from  the  father  for  strict  necessaries,  even 
if  he  knew  this  arrangement.  On  what  ground  could  the 
father  discharge  himself  from  his  liability  by  such  a  contract? 
Even  if  the  father  had  paid  the  son  a  consideration  for  the 
release  of  all  further  obligation,  it  would  be  a  contract  with 
an  infant,  and  void  or  voidable,  because  certainly  not  for  ne- 
cessaries. And  the  whole  policy  and  reason  of  the  law  of 
infancy  would  seem  to  be  opposed  to  permitting  a  father  to 
cast  his  son  in  this  way  upon  the  public,  and  relieve  himself 
from  the  obligation  of  maintenance. 

It  may  be  added,  that  while  an  infant  remains  under  the 
care  and  control  of  his  father,  and  is  in  fact  supported  by  him, 
the  infant  is  not  liable,  even  on  his  express  contract,  to  a  stran- 
*ger  for  necessaries  furnished  for  him.  One  reason  given  for 
this,  is,  that  it  would  interfere  with  his  father's  right  of  judg- 
ing how  he  should  be  supported,  (o)  Where  services  are 
rendered  at  the  parent's  request,  it  will  be  presumed  that 
credit  is  given  to  him  alone,  and  in  that  case  the  infant  can- 
not be  liable  even  for  necessaries,  (p) 

The  common-law  liability  of  a  parent  to  support  his  child 
ceases  altogether  when  the  infant  becomes  of  full  age ;  and 
then  a  parent  would  not  be  bound  even  by  his  express  pro- 
mise to  pay  for  necessaries  previously  furnished  to  the  child, 
not  at  the  request  of  the  father,  {q)  If  they  were  furnished 
at  his  request  it  would  be  otherwise,  (r) 

By  statute  of  43  Eliz.  c.  2,  the  father,  »  being  of  ability," 
is  liable  to  contribute  to  his  child's  support  even  after  he  be- 
comes of  age.     And  in  some  of  our  States  similar  provision 

(o)  Angel  r.  McLelkn,  16  Mass.  28  ;        (/))  Duncomb  v.   Tickridgo,   Alcyn, 

Wiiiling  V.  Toll,  9  Johns.  Ul  ;  Hull  v.  94  ;  Thelps  v.  Worcester,  11  :NewIiamp. 

Connolly,3McCora,  6:  Kline  r.L'Amo-  51  ;  Simms  v.  Xorris,  5  Ala.  42. 
reux,  2  Paige,  419;    Guthrie  v.  Mur-         ,   ,  ,,.„  -„.  „    ,,.  ,.    onr 

I)hy,4  Watts",  80;  Simms  v.  Korris,  5  ^  ('i'),^^^'"f   \   ^™'   %  J,'±  ;f- 

Ala.  42 ;  Johnson  v.  Lines,  6  W.  &  S.  ^^°  ''^''^^  ^"'^^  ''•  ^''"''^^^y'  ^  ^onn.  57. 
SO ;  Phelps  v.  Worcester,  U  New  Hamp.        (r)  Loomis  v.  Newhall,  15  Pick.  159. 

23*  [269] 


260*  THE  LAW   OF   CONTRACTS.  [bOOK  I. 

is  made,  (.s)  But  such  a  liability  is  wholly  statutory,  and 
does  not  accrue  until  proceedings  are  had  pursuant  to  the 
statute.  (/)  So  at  common  law  a  son  is  not  liable  for  the 
support  of  an  infirm  and  indigent  parent,  (u)  Nor  is  a  father 
liable  at  common  law  for  the  support  of  his  illegitimate  child. 
The  only  remedy  is  under  the  statute,  procuring  an  order  of 
filiation,  and  the  like,  (v)  f 


SECTION  III. 

VOIDABLE   CONTRACTS   FOR   NECESSARIES. 

As  an  infant  is  not  permitted  to  enter  into  general  con- 
tracts, because  his  immature  judgment  would  expose  him  to 
•injury,  and  as  he  is  nevertheless  permitted  to  contract  for 
necessaries,  because  otherwise  he  might  suffer  for  the  want 
of  them,  so  this  exceptional  permission  is  qualified  in  an  im- 
portant particular,  for  the  same  purpose  of  protecting  him 
from  wrong.  He  cannot  contract  to  pay  even  for  necessa- 
ries, in  such  wise  as  to  bar  an  inquiry  into  the  price  and 
value.  The  law  permits  persons  to  supply  his  necessities, 
and  have  therefor  a  valid  claim  against  him  for  their  fair 
worth  ;  but  it  does  not  permit  them  to  make  a  bargain  with 
him  as  to  the  price,  which  shall  bind  him  absolutely,  because 
it  does  not  permit  him  to  determine  this  price  for  himself,  by 
reason  of  his  presumed  inability  to  take  proper  care  of  his 
own  interests  ;  but  the  value  and  the  price  may  be  deter- 
mined by  a  jury.  And  a  seal  to  the  instrument  would  give 
it  no  additional  force  in   this  respect,  but  the  infant  would 

(s)  The  provision  in  the  Kev.  Stat.  Mortimove  v.  Wright,  6  M.  &  W.  488; 
of  Massachusetts,  ch.  46,  sect.  5,  is  very  Gordon  v.  Potter,  17  Verm.  348;  Shel- 
broad.     "  The  kindred  of  any  such  poor    ton  v.  Springett,  20  E.  L.  &  E.  281. 

■nerson,   if  any  he   shall   have,  in   the         /   \  -n  i        i        -r.     •     ic  r  i,       oot 
poiBwu,   1         -^  c  c  ^^  .     ..„'.if,fi,«..  («)  Edwards  u.  Davis,  16  Johns.  281 : 

line  or  desree  of  fatlier  or  grandiather,  t>  tvt      i        i    o.      mn      -n   . 

"     ,         "  J      ,,  1 -1 1    „    „'  Rex  V.  Munden,  1   Str.  190.     But  see 

mother    or    gramimother,    ^h-  dren    or  ^.^^^^^^  ^,  ^^,^^^  ,  Eoot,  168  ;  Ex  parte 

grandchildren    by  consanguinity,  l.vinp  ^  ^        -^  284. 

within  this  State,  and  ot  suthcient  abi-  ' 

lity,  shall  be  bound  to  support  such  pan-         (u)  Furillio  v.   Crowther,  7  Dow.  & 

per,  in  proportion   to    their   respective  Ryl.  612;     Cameron  ??.  Baker,  1  Car.  & 

abilitv."  P-   268;  Moncrief  v.  Ely,   19   Wend. 

(i)'Loomis  x\  Newhall,  15  Pick.  159 ;  405. 

[270] 


CH.  XVI.J 


INFANTS. 


*261 


still  be  bound  only  for  a  fair  value.  For  the  same  reason 
an  infant  cannot  be  bound  for  the  amount  in  an  account 
stated;  (w)  nor  for  the  sum  mentioned  in  his  note,  although 
given  for  necessaries,  but  only  for  the  value  of  the  neces- 
saries ;  (x)  nor  for  the  amount  dae  on  his  bond  ;  for  the  an- 
cient distinction  which  held  him  on  a  band  without  a  penalty, 
but  not  on  a  bond  with  penalty,  would  probably  be  now^  dis- 
regarded. (7/) 

*Neither  can  an  infant  enter  into  contracts  of  business  and 
trade  ;  for  this  is  not  necessary,  and  might  expose  him  to  the 
misfortune  of  entering  upon  adult  life  with  the  burden  of 
bankruptcy  resting  upon  him.  (z)  But  if  he  uses,  as  neces- 
saries for  himself  or  his  family  the  goods  furnished  to  him 
for  purposes  of  trade,  he  is  so  far  liable,  (a)  This  liability 
to  pay  even  for  necessaries  seems  to  be  founded  only  on  his 


{lo)  Tngledew  v.  Douglas,  2  Starkie, 
36 ;  Trueman  v.  Hurst,  1  T.  K.  40 ; 
Hedjilcy  r.  Holt,  4  C.  &  P.  104;  Oliver 
V.  Woodroffe,  4  M.  &  W.  650;  Wil- 
liams V.  iMoor,  11  M.  &  W.  256  ;  Beeler 
V.  Young,  1  Bibb,  519. 

(x)  McCrillis  v.  How,  3  New  Hamp. 
348  ;  Boudicll  v.  Clary,  3  Brevard,  194; 
Swasey  r.  Vanderhcyden,  10  Johns.  33; 
Fenton  v.  White,  1  Southard,  100;  Mc- 
Minn  i-.  Kichmonds,  6  Yerg.  9;  Hanks 
V.  Deal,  3  McCord,  257.     Some  of  these 
cases  declare  an  infant's  note,  though 
given  for  necessaries,  void,  hut  it  is  con- 
ceived they  mean  voidable  only,  and  not 
that  such  note  is  not  susceptilde  of  rati- 
fication.     Although   an    infant's    note 
given   for  necessaries  would   not  bind 
him  as  to  the  amount,  he  may  yet  be  sued 
on  the  instrument,  and  the  plaintiff  may 
recover  the  just  value  of  the  necessaries 
for  which  the  note  was  given.     Earlc  v. 
Eeed,  10  Met.  387;  Dubose  v.  Whed- 
don,  4  McCord,  221.     See  also   Stone 
r.  Dennison,  13  Pick.  1,  that  wherever 
the  form  of  an  infant's  contract  for  ne- 
cessaries is  such  that  the  consideration 
is  open  to  inquiry,  he  may  be  sued  upon 
the  contract  itself.    And 'in  Bradlev  v. 
Pratt,  23  Verm.  378,  interest  is  allowed 
on  a  promissory  note  given  by  an  infant, 
and  it  is  declared  that  there  is  no  gene- 
ral rule  exempting  infants  from  a  lia- 
bility to    pay    interest    on    their   just 
debts. 

(y)  The  older  cases  hold  that  an  in- 


fimt's  bond,  at  least,  if  given  ivith  a  pe- 
nalty, is  absolutely  void,  not  voidable 
merely,  although  given  for  necessaries. 
Ayliff  V.  Archdale,  Cro.  Eliz.  920; 
Fi'sher  v.  Mowbray,  8  East,  300  ;  Baylis 
V.  Dinelcy,  3  M.  &  S.  477;  Hunter  v. 
Agnew,  I  Fox  &  Smith,  (Irish)  15; 
Allen  V.  Minor,  2  Call,  70  ;  Colcock  v. 
Ferguson,  3  Des.  482. — It  is  conceived, 
however,  that  in  this  country,  bonds, 
like  other  contracts,  arc  only  voidable, 
and  may  be  ratified.  Conroe  v.  Birds- 
all,  1  Johns.  Cas.  127.  The  marginal 
note  to  this  case  erroneously  uses  the 
word  void,  in  relation  to  such  bond  ;  the 
court  said  it  was  only  voidable. 

(z)  Whittingham  v.  Hill,  Cro.  Jac. 
494;  Whvwall  v.  Chami)ion,  2  Strange, 
1083;  Dilk  v.  Kcighley,  2  Esp.  480. 
Latt  V.  Booth,  3  Carr.  &  Kir.  292.  But 
if  with  his  guardian's  consent  he  is 
carrying  on  a  certain  business,  it  has 
been  held  that  he  might  bind  himself  to 
pay  for  articles  suitable  and  necessary 
for  that  business,  Rundell  v.  Keeler,  7 
Watts,  237.  Sed  quare.  Although  an 
infant  cannot  trade,  and  would  not  be 
bound  to  execute  any  contract  of  trade 
he  may  have  entered  into,  yet  if  he  has 
in  part  executed  such  contract  himself, 
he  may  sue  the  adult  fur  non-perform- 
ance on  his  part,  and  this  while  he  is 
vet  an  infant.  Warwick  i-.  Bruce,  2  M. 
&  S.  205. 

(<i)  Turberville  v.  Wliitehousc,  1  C. 
&P.  94,  12  Price,  692. 

[271] 


262* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


actual  necessities,  and  if  he  had  already  supplied  himself 
with  sufficient  clothing,  it  was  held  that  he  was  not  bound 
to  pay  for  similar  articles  subsequently  purchased,  although 
they  might  be  suitable  in  themselves,  and  although  he  had 
avoided  payment  for  the  first  purchase  on  the  ground  of  his 
infancy,  {b)  As  he  cannot  trade,  neither  can  he  subject  him- 
self to  the  incidents  of  trade,  as  bankruptcy  or  insolvency,  (c) 
nor  is  he  liable  as  a  partner  of  a  mercantile  firm,  (d)  Nor 
*can  he  be  sued  on  his  covenant  as  an  apprentice,  (e)     Nor 


(b)  Biirghart  v.  Angerstein,  6  C  &  P. 
690. 

(c)  For  no  man  can  be  a  bankrupt, 
for  debts  which  he  is  not  obliged  to  pay. 
Kex  V.  Cole,  1  Ld.  Raym.  443,  per  Ilolt, 
C.  J. ;  Ex  parte  Sydebotham,  1  Atk. 
146. — And  a  commission  of  bankrupt- 
cy against  an  infant  is  void,  and  not 
merely  voidable.  Belton  v.  Hodges,  9 
Bing.  365;  O'Brien  v.  Currie,  3  C  & 
P.  283.  This  is  the  English  rule ;  but 
in  this  country  it  has  been  held  that  an 
infant  is  entitled  to  the  benefit  of  the 
bankrupt  law  of  the  United  States  of 
1841,  and  that  the  proceedings  might  be 
in  his  own  name.  In  re  Samuel  Book, 
3  McLean,  317. 

(d)  If,  however,  an  infant  engages  in 
a  partnership,  he  must,  at  or  within  a 
reasonable  time  after  the  period  of  his 
coming  of  age,  notify  his  disaiSrmancc 
thereof;  otherwise  he  will  be  deemed  to 
have  confirmed  it,  and  will  be  bound  by 
subsequent  contracts  made  on  the  cre- 
dit of  the  partnership.  Goodc  v.  Harri- 
son, 5  B.  &  Aid.  147.  Ba>/ley,  J.,  in  this 
case,  said  :  —  "It  is  clear  that  an  infant 
may  be  in  partnership.  It  is  true  that 
he  is  not  liable  for  contracts  entered  in- 
to during  his  infancy ;  but  still,  he  may 
be  a  partner.  If  he  is  in  point  of  fact 
a  partner  during  his  infancy,  he  may, 
when  he  comes  of  age,  elect  if  he  will 
continue  that  partnership  or  not.  If  he 
continues  the  partnership,  he  will  then 
be  liable  as  a  partner  ;  if  he  dissolve  the 
partnership,  and  if,  when  of  age,  he 
takes  the  proper  means  to  let  the  world 
know  that  the  partnership  is  dissolved, 
then  he  will  cease  to  be  a  partner.  But 
the  foundation  of  my  opinion  is  the  neg- 
ligence of  Bennion  at  the  time  he  be- 
came' of  age.  Suppose  an  infant  is  not 
really  a  partner,  and  that,  during  his 
infancy,  he  never  in  fact  enters  into  any 
joint  purchase,  but  that  he  holds  out  to 

[272] 


different  people,  '  I  am  a  partner  with 
A.  B.,'  and  then  comes  of  age.  Sup- 
pose also  that  the  person  to  whom  he 
made  the  representation  furnishes  A.  B. 
with  goods,  A.  B.  representing  himself 
to  be  a  partner  with  the  infant,  and  the 
latter  having  done  nothing  to  correct 
the  mistake  and  apprehension  in  the 
mind  of  the  seller  of  those  goods ;  I 
should  think,  in  such  a  case  as  that,  the 
infant,  the  person  who,  when  he  was  an 
infant,  had  represented  himself  as  being 
a  partner  with  A.  B.,  would,  by  suffer- 
ing that  delusion  to  continue  when  he 
became  of  age,  and  neglecting  to  set  the 
matter  right,  be  liable  to  all  those  per- 
sons upon  whom  the  delusion  operated. 
That  is  the  justice,  and,  as  it  seems  to 
me,  the  law  of  the  case."  So  in  IMiller 
V.  Sims,  2  Hill,  So.  Car.  R.  479,  it  was 
held  that  an  infant  partner,  who  after- 
wards confirmed  the  contract  of  partner- 
ship, by  transacting  the  business  and 
receiving  the  profits,  became  thereby 
liable  on  all  the  previous  liabilities  of 
the  firm,  even  such  as  were  not  known 
to  him.  But  as  to  the  last  point  see 
contra,  Crabtree  v.  May,  1  B.  Monroe, 
289. 

(c)  It  is  clear  that  an  infant  cannot 
be  sued  on  his  covenants  of  indenture. 
See  Gylbert  v.  Pletcher,  Cro.  Car.  179  ; 
Jennings  v.  Pitman,  Hutton,  63  ;  Lyl- 
ly's  case,  7  Mod.  15  ;  "Whitley  v.  Loftus, 
8  Mod.  190;  Frazier  v.  Kowan,  2  Brev. 
47  ;  McKnight  v.  Hogg,  3  Brev.  44. — 
But  if  the  infant  is  a  party  to  the  inden- 
ture, or  his  consent  be  expressed  in  it, 
many  cases  have  held  that  the  contract 
of  apprenticeship  is  binding  absolutely 
upon  him,  and  that  he  cannot  dissolve 
the  relation  thus  created.  See  Rex  v. 
Great  Wigston,  3  B.  &  C.  484.— And  a 
right  of  action  necessarily  results  to  the 
injured  party  for  a  breach  thereof. 
Woodruff  V.  Logan,  1  Eng.  Rep.  (Ark.) 


CH.   XVI.] 


-INFANTS. 


*2Q'i 


is  his  contract  for  labor  and  service  generally  binding.  (/) 
But  enlistments  in  the  navy,  though  made  without  the  con- 
sent of  the  parent  or  guardian,  are  binding,  and  the  infant 
cannot  avoid  them  ;  (g-)  it  is  otherwise  as  to  the  array,  (gg-) 
Neither  can  he  avoid  a  contract  whereby  he  undertakes  to 
do  what  he  is  under  a  legal  obligation  to  do ;  as  a  bond 
executed  under  a  statute,  to  indemnify  a  town  for  the  sup- 
port of  an  illegitimate  child;  for  which  *an  order  of  filiation 
has  been  made  upon  him.  (h)  He  is  not  responsible  as  an 
innkeeper  for  losses  sustained  by  his  guests,  (i)  Nor  will 
joining  her  husband  in  a  conveyance  bar  an  infant  feme 
covert  of  her  right  of  dower,  {ii) 


276. — And  this,  because  it  was  said  that 
such  contracts  must  he  fur  the  infant's 
benefit,  and  tlicrefore  he  should  not 
avoid  them.  But  analogy  and  principle 
would  seem  to  require  that,  independ- 
ently of  any  statutory  provisions  regu- 
lating this  matter,  this  contract,  like  all 
others,  siiould  be  voidable  at  his  elec- 
tion. Sep  the  cases  cited  in  the  next 
note.  Where  a  statute  allows  a  parent 
to  bind  his  son  as  an  apprentice,  un- 
doubtedly an  indenture  executed  in  pur- 
suance of  such  statute  would  bind  all 
the  parties  to  it ;  and  the  infant  could 
not  dissolve  the  relation  thus  created, 
but  it  would  not  necessarily  follow  that 
the  remedy  of  the  adult,  for  the  deser- 
tion of  the  apprentice,  would  be  an  ac- 
tion afjaiust  him  on  his  covenants.  See 
also  ilarper  v.  Gilbert,  5  Cush.  417. 

(/)  Vent  V.  Osgood,  19  Pick.  572; 
Moses  v.  Stevens,  2  Pick.  3.32;  Nickcr- 
son  v.  Easton,  12  Pick.  110  ;  Francis  v. 
Felrnir,  4  Dev.  &  Batt.  498  ;  Thomas  v. 
Bike,  11  Verm.  27.3;  Peters  v.  Lord, 
18  Conn.  337.  And  if  an  infant  do 
avoid  such  contract,  when  part  perform- 
ed, he  may  recover  on  a  quantum  meruit 
for  the  labor  actuallv  performed  under 
it.  Vent  V.  Osgood."l9  Pick.  572  ;  Jud- 
kins  V.  Walker.  17  Maine,  38  ;  Medbury 
r.  Watrous,  7  Hill,  110,  (overruling  the 
contrary  cases  of  McCoy  v.  Huffman,  8 
Cow.  84  ;  Weeks  v.  Leisrhton,  5  New 
Hamp.  343;  Harney  v.  Owen,  4  Blackf. 
337.)  Deducting  it  seems  any  injury 
the  adult  may  have  sustained  bv  such 
avoidance.  Thomas  v.  Dike,  11  "Verm. 
273  ;  Moses  v.  Stevens,  2  Pick.  332 ; 
Judkins  ;;.  Walker,  17  Maine,  38.  But 
see  Whitraarsh  v.  H,all,  3  Denio,  375, 


contra,  as  to  deducting  for  injury  to  the 
adult. 

(7)  Commonwealth  v.  Gamble,  11  S. 
&  R.  93  ;  Commonwealth  v.  Murray, 
4  Binn.  487  ;  United  States  r.  Bain- 
bridge,  1  Mason,  71  ;  United  States  v. 
Blakeney,  3  Grattan,  405. 

(grj)  The  statutes  of  the  United  States 
provide  that  no  person  under  the  age  of 
twenty-one  years  shall  be  enlisted  with- 
out the  consent  of  his  parent,  guardian, 
or  master.  See  United  States  v.  Bain- 
bridge,  1  Mason,  71 ;  Commonwealth  v. 
Harrison,  1 1  Mass.  63  ;  Commonwealth 
t'.  Cusliing,  11  Mass.  67. 

(h)  People  V.  Moores,  4  Denio,  518. 
So  where  a  fother  entered  land  in  the 
name  of  his  minor  son,  for  the  purpose 
of  defrauding  his  creditors,  and  after- 
wards sold  the  land,  which  the  son  by 
his  direction  conveyed  by  his  own  deed, 
during  liis  infancy,  to  the  purciiaser,  it 
was  held  that  such  deed  was  one  which 
the  law  would  have  compelled  him  to 
make,  and  therefore  could  not  be  avoid- 
ed by  him,  on  arriving  at  full  age.  El- 
liott V.  Horn,  10  Ala.  348.  In  like 
manner  equal  partition  of  lands  binds 
an  infant.  Bavington  v.  Clarke,  2  Penn. 
115;  Commonwealth  v.  Hantz,  Id.  333. 
The  binding  effect  of  proceedings  in 
partition  in  Pennsylvania,  where  a  pur- 
part is  accepted  by  the  guardian,  de- 
jicndsupon  .statutes.  Gilbach's  Appeal, 
8  S.  &  R.  205. 

(/)  Holt,  C.  J.,  Williams  v.  Harrison, 
Carth.  161;  Crosse  v.  Androcs,  I  Kol. 
Abr.  2,  D.  pi.  3. 

( iV)  Cunningham  r.  Knight,  1  Barb.  399- 
[273] 


264*  THE   LAW   OF   CONTRACTS.  [BOOK   I. 


SECTION  IV. 
OF   THE   TORTS    OF   AN   INFANT. 

An  infant  is  protected  against  his  contracts,  but  not 
against  his  frauds  or  other  torts,  (j)  But  his  promissory  note 
given  as  a  compensation  for  his  torts  is  not  binding,  (jj)  If 
such  tort  or  fraud  consists  in  the  breach  of  his  contract,  then 
he  is  not  liable  therefor  in  an  action  sounding  in  tort,  because 
this  would  make  him  liable  for  his  contract  merely  by  a 
change  in  the  form  of  the  action,  which  the  law  does  not 
permit,  (k)  But  where  the  tort,  though  connected  by  cir- 
cumstances with  the  contract,  is  still  distinguishable  from  it, 
there  he  is  liable.  As  if  he  hires  a  horse  for  an  unnecessary 
ride  he  is  not  liable  for  the  hire ;  but  if  in  the  course  of  the 
ride  he  wilfully  abuses  and  injures  the  horse,  he  is  liable  for 
the  tort,  (l)  And  *if  he  should  sell  the  horse,  trover  would 
lie,  nor  would  his  infancy  be  a  good  defence.  Nor  need  this 
tort  or  fraud  be  subsequent  to  the  contract.  Thus,  in  the  case 
of  a  bond  given  by  an  infant  and  received  by  the  obligee  in 
reliance  upon  his  false  and  fraudulent  representations  of  his 
being  of  full  age,  the  bond  cannot  be  enforced  against  him.  (m) 

(j)  See  Stone   v.  Withipool,  Latch,  Wend.  399 ;  Jennings  v.  Rundall,  8  T. 

21 ;  Bullock  v.  Babcock,  3  Wend.  391  ;  R.  337. 

Hanks  v.  Deal,  3  McCord,  257;  Green  (1)  Campbells.  Stakes,  2  Wend.  137. 
V.  Sperry,  IG  Verm.  390;  Lewis  v.  Lit-  And  so  he  will  be  liable  in  trover  if  he 
tleficld,  1.5  IMaine,  233  ;  Hartfield  v.  Eo-  drive  the  horse  further,  or  on  a  dilferent 
per,  21  Wend.  615,  620  ;  Brown  v.  route,  from  that  for  which  he  has  en- 
Maxwell,  6  Hill,  592,  594 ;  Homer  v.  gaged  him.  Homer  v.  Thwing,  3  Pick. 
Thwing,  3  Pick.  492;  School  Dist.  v.  492.  Approved  in  Green  r.  Sperry,  16 
Bragdon,  3  Fost.  516.  He  is  even  lia-  Verm.  390  ;  Towne  v.  Wiley,  23  Verm, 
ble  for  his  torts,  though  he  act  by  his  353.  Andsee  Vasse  r.  Smith,  6  Cranch, 
father's  command.  Humphrey  y.  Doug-  226.  But  see  Wilt  v.  Welsh,  6  Watts, 
lass,  10  A''crm.  71 ;  or  through  the  agen-  9  ;  Penrose  v.  Curran,  3  Rawle,  351  ;  1 
cv  of  a  third  person.  Sikes  w.  Johnson,  Am.  Lead.  Cases,  118,  119  (1st  ed.); 
16  Mass.  389.  10  Am.  Jur.  98  ;  11  Id.  69  ;  20  Id.  264. 

(jJ)  Hanks  v.  Deal,  3  McCord,  257.  (m)  Conroe  v.  Birdsall,  1  Johns.  Cas. 

(k)  See  West  i-.  Moore,  14  Verm.  127  ;  Brown  r.  IMcCune,  5  Sandf.  224. 
447  ;  Brown  v.  Durham,  1  Root,  273 ;  Neither  will  his  warrant  of  attorney  to 
and  Morrill  r.  Aden,  19  Verm.  505,  that  confess  judgment  bind  him,  and  the 
infancy  is  a  bar  to  an  action  founded  on  court  cannot  make  it  good,  although 
a  false  and  fraudulent  warranty.  But  there  be  fraud  in  the  infant.  Saunder- 
contrd,  Word  v.  Vance,  1  Nott  &  ]Mc-  son  v.  Marr,  1  H.  Bl.  75.  See  also  Bur- 
Cord,  197;  Peigne  v.  Sutelitle,  4  Mc-  ley  v.  Russell,  10  New  Hamp.  184; 
Cord,  387;   The  People  v.  Kendall,  25  Stoolfoos  v.  Jenkins,  12  S.  &  R.  399. 

[274] 


en.  xvl] 


INFANTS. 


*265 


But  as  soon  as  the  infant  makes  and  delivers  it  he  is  guilty 
of  a  fraud,  for  which  an  action  may  be  at  once  maintained 
for  any  loss  sustained,  (n)     *As  long  as  the  bond  runs,  it  is 


(n)  Fitts  V.  Hall,  9  New  Hamp.  441  ; 
(overruling  Johnson  v.  Pie,  1  Lev.  169, 
contra  ;)  Com.  Dig.  Action  on  the  Case 
for  Deceit,  A.  10;  2  Kent's  Com.  241, 
note  c. ;  Eeeves's  Dom.  Rel.  259. — And 
in  Wallace  v.  Morss,  5  Hill,  391,  an 
infant  who  had  fraudulently  obtained 
goods  upon  credit,  not  intending  to  pay 
for  them,  was  held  liable  in  an  action 
for  the  tort.  But  see  contra  Brown  v. 
McCune,  5  Sandf  224 ;  Price  v.  Hewett, 
18  E.  L.  &  E.  522.  The  case  of  Pitts  v. 
Hall,  supra,  is  decidedly  cond(^ncd  in 
1  Am.  Lead.  Cas.  pp.  117,  118,  Avhere 
the  learned  editors  say:  —  "This  deci- 
siorv,  which  directly  overrules  Johnson 
V.  Pic,  1  Levinz,  169,  is  clearly  unsound ; 
the  representation  by  itself  was  not  ac- 
tionable, for  it  was  not  an  injury ;  and 
the  avoidance  of  the  contract,  which 
alone  made  it  so,  was  the  exercise  of  a 
perfect  legal  right  on  the  part  of  the  in- 
f:\nt.  The  contract,  in  such  a  case  as 
Fitts  V.  Hall,  forms  an  essential  part  of 
the  right  of  action,  and  no  liability 
growing  out  of  contract  can  be  asserted 
against  an  infant.  The  test  of  an  action 
against  an  infant  is,  whether  a  liability 
can  be  made  out  without  taking  notice 
of  the  contract.  It  is  admittetl,  in  the 
same  court,  that  such  an  affirmation  as 
in  Fitts  V.  Hall  does  not  estop  the  in- 
fant so  as  to  render  him  liable  on  the 
contract;  which  implies  that  the  avoid- 
ance of  a  contract  induced  by  such  a 
representation  is  not  a  fraud.'"  In  the 
case  referred  to,  Parker,  C.  J.,  says:  — 
"But  Johnson  v.  Pie,  1  Lev.  169,  was 
'  case,  for  that  the  defendant,  being  an 
infant,  affirmed  himself  to  be  of  full  age, 
and  by  means  thereof  the  plaintiff  lent 
him  £100,  and  so  he  had  cheated  the 
plaintiff  by  this  false  affirmation.'  After 
verdict  for  the  plaintiff,  it  was  moved  in 
arrest  of  judgment  that  the  action  would 
not  lie  for  this  false  affn-mation,  but  the 
plaintiff  ought  to  have  informed  himself 
by  others.  '  Kelyngo  and  Wyndham 
held,  that  the  action  "did  not  lie,  because 
the  affirmation,  being  by  an  infant,  was 
void ;  and  it  is  not  like  to  trespass,  fe- 
lony, &c.,  for  there  is  a  fact  done. 
Twysden  doubted,  for  that  infants  are 
cliargcable  for  trespasses.  Dyer,  105  ; 
and  so,  if  he  cheat  with  false  dice,  &c.' 


The  report  in  Levinz  states  that  the  case 
was  adjourned ;  but  in  a  note,  referring- 
to  1  Keb.  905,  913,  it  is  stated  that 
judgment  was  arrested.  If  this  case  be 
sound,  the  present  action  cannot  be  sus- 
tained on  the  first  count.  From  a  re- 
ference in  the  margin,  it  seems  that  the 
same  case  is  reported,  1  Sid.  258.  Chief 
Baron  Comyns,  howevei",  who  is  himself 
regarded  as  high  authority,  seems  to 
have  taken  no  notice  of  this  case  in  his 
digest,  'Action  on  the  case  for  Deceit,' 
but  lays  down  the  rule  that  '  If  a  man 
affirms  himself  of  full  age  when  he  is 
an  infant,  and  thereby  procures  money, 
to  be  lent  to  him  upon  mortgage,'  he  is 
liable  for  the  deceit;  for  which  he  cites 
1  Sid.  183;  Com.  Dig.  Action,  &c.  A. 
10.  We  are  of  opinion  that  this  is  the 
true  principle.  If  infancy  is  not  per- 
mitted to  protect  fraudulent  acts,  and 
infants  are  liable  in  actions  ex  delicto, 
whether  founded  on  positive  wrongs,  or 
constructive  torts,  or  frauds,  (2  Kent. 
197,)  as  for  slander,  (Noy's  Rep.  129, 
Ilodsman  v.  Grissel,)  and  goods  con- 
verted, (auth.  aiite,)  there  is  no  sound 
reason  that  occurs  to  us  why  an  infant 
should  not  be  chargeable  in  damages  for 
a  fraudulent  misrepresentation,  whereby 
another  has  received  damage."  But  it 
is  believed  that  the  true  ground  of  the 
decision  in  Fitts  v.  Hall  was  mistaken 
in  the  Am.  Lead.  Cases,  the  learned 
authors  being  misled  perhaps  by  the 
marginal  note,  in  which  it  is  said  that 
"An  infant  is  answerable  for  a  fraudu- 
lent representation  and  deceit,  which  is 
not  connected  with  the  subject-matter 
of  a  contract,  but  by  which  the  other 
party  is  induced  to  enter  into  one  with 
him,  if  he  qfierivards  avoids  the  contract 
hij  reason  of  his  infancy."  Such  may  have 
been  the  case  before  the  court ;  but  the 
principle  to  be  deduced  from  the  deci- 
sion is  that  a  fraudulent  misrepresenta- 
tion, whereby  money  or  goods  are  ob- 
tained by  an  infant,  is  itself  an  actionable 
injury.  It  is  stated  in  Bac.  Abr.  Infancy 
&  Age,  (I.)  3:  —  "If  an  infant,  without 
any  contract,  wilfully  takes  away  the 
goods  of  another,  trover  lies  against  him. 
Also  it  is  said,  that  if  he  take  the  goods 
under  pretence  that  he  is  of  full  age, 
trover  lies,  because  it  is  a  wilful  and 

[275] 


266*  TUE   LAW   OF   CONTRACTS.  [bOOK   I. 

not  clear  that  he  will  not  pay  it;  and  this  uncertainty  should 
perhaps  reduce  the  damages  to  a  nominal  amount.  But 
when  he  refuses  to  pay,  and  avoids  the  bond,  by  this  refusal 
he  gives  no  new  cause  of  action,  but  now  in  the  action 
grounded  upon  the  original  tort,  full  damages  may  be  given. 
It  might  be  held,  however,  that  before  any  action  could  be 
maintained  for  the  fraud  in  making  such  a  bond,  either  he 
must  have  refused  payment,  or  else  the  bond  should  be 
returned  to  him;  and  then  the  plaintiff  would  be  entitled  to 
recover  the  full  amount  of  the  bond.  And  if  goods  were  sold 
to  an  infant  in  reliance  upon  his  fraudulent  representations 
that  he  was  of  full  age,  the  seller  may  reclaim  them,  certainly 
on  his  refusal  to  pay,  if  not  before,  on«the  ground  that  he  had 
never  parted  with  his  property,  (o) 

When  goods  not  necessaries  are  sold  to  an  infant,  without 
fraudulent  representations  by  him,  with  a  knowledge  by  the 
seller  of  his  infancy,  and  the  infant  refuses  to  pay  for  them, 
and  also  refuses  to  return  the  goods,  although  they  are  within 
*  his  possession  and  control,  some  question  exists  as  to  the 
rights  of  the  seller.  Some  authorities  support  the  doctrine 
that  he  is  remediless,  regarding  the  incapacity  of  the  infant 
as  his  privilege  and  his  defence.  But  it  seems  unreasonable 
and  unjust  to  say  that  the  infant  may  refuse  to  pay  for  the 
goods,  without  affecting  the  validity  of  the  sale  to  him.  It 
should  seem  enough  if  the  infant  has  the  power  of  rescinding 
the  sale.  This  is  an  adequate  protection ;  and  if  the  goods 
are  out  of  his  possession  when  the  sale  is  rescinded,  the  seller 
may  be  wholly  without  remedy.  But  when  the  sale  is  re- 
scinded, the  property  in  the  goods  should  revest  in  the  seller, 
so  far,  at  least,  that  if  he  finds  them  in  the  possession  of  the 

fraudulent  trespass."     So  an  infant  is  parted  with.     See  20  Am.   Jur.  265. 

liable  for  a  fraudulent  execution  of  a  But  in  Stikeman  v.  Dawson,  1  De  Gex 

trust  confided  to  him.    Loop  v.  Loop,  &  Smale,  90,  it  was  held,  that   in  the 

1  Verm.  177.  absence  of  any  positive   misrepresent- 

(o)  Badger  v.  Phinney,  1.5  Mass.  359  ;  ation,  the  mere  omission  of  the  infant 

Mills  V.   Graham,  4  B.  &  P.  140,  Per  to  disclose  his  minority  was  not  a  suffi- 

Mansjitld,  C.  J.  ;_Furnes  v.    Smith,  1  cient  fraud  to  invalidate  the  contract. 

Eol.  Abr.  530,  C.  pi.  3.     It   has  been  So  his  note  is  voidable,  although   the 

suggested  that  the  mere  silence  of  the  payee  did  not  know  of  his  infancy  and 

infant  as  to  his  age,  knowing  that  the  although  he  was  carrying  on  trade  as 

other    party  believed    him    an    adult,  an  adult.     Van  Winkle  v.  Ketcham,  3 

would  be  a  sufficient  ground  to  enable  Caines,  323. 
the  other  party  to  reclaim  the  goods  so 

[276] 


CH.  XVI.] 


INFANTS. 


*267 


infant,  he  may  peaceably  retake  them  as  his  own.  And  if 
he  demands  them,  the  refusal  of  the  infant  to  deliver  them 
would  seem  to  be  a  tort  wholly  independent  of  the  contract, 
on  which  trover  might  be  maintained.  And  there  are  au- 
thorities which  sustain  this  view,  {p)     At  all  events,  it  seems 


(p)  Judge  Reeve  states  similar  views 
in  his  work  on  the  Domestic  Relations, 
p.  244.  He  says:  —  "But  it  seems  to 
have  been  an  opinion  among  the  ele- 
mentary writers,  that  if  a  contract  be 
performed  by  the  adult  to  the  infant, 
and  then  the  infant  refuse  to  perform 
his  part,  and  this  contract  be  rescinded ; 
that,  in  such  cases,  the  adult  has  no  re- 
medy to  recover  the  consideration  paid 
to  the  minor.  So  that  if  a  minor 
shoukl  contract  to  pay  an  adult  $50  for 
a  horse,  sold  to  him  by  the  adult,  and 
then  the  minor  should  rescind  the  con- 
tract, that  the  adult  must  lose  his  horse. 
Or  if  a  minor  should  buy  a  horse,  and 
pay  for  him,  that  he  might  rescind  the 
contract,  and  recover  back  the  money, 
and  yet  retain  the  horse ;  it  being  a 
presumption  of  law,  as  they  say,  that 
the  consideration  paid  or  delivered  by 
the  adult  was  intended  as  a  present  to 
the  minor.  This  doctrine  appears  to 
me  to  be  wholly  destitute  of  principle, 
and  not  supported  by  the  authorities. 
That  the  minor  has  a  right  to  rescind 
his  contract  at  pleasui-e  is  not  contro- 
verted ;  but  when  rescinded  I  should 
suppose  that  the  contract  was  as  if  it 
had  never  been,  and  that  the  minor 
could  never  retain  when  he  had  re- 
scinded. I  apprehend  it  to  be  a  sound 
maxim,  and  which  is  founded  in  the 
highest  reason,  that  an  infant,  although 
he  may  always  use  his  privilege,  as  a 
shield  to  defend  himself  against  his  own 
contracts,  yet  he  shall  never  make  use 
of  it  as  an  offensive  weapon  to  injure 
others.  It  is  enough  that  an  infant 
shall  have  full  power  to  set  afloat  his 
contract.  In  doing  this  he  is  in  the 
proper  use  of  his  privilege ;  but  to  ob- 
tain, by  that  means,  property  from 
others,  is  a  fraud ;  and  is  turning  his 
privilege  into  an  off"ensive  weapon, 
which  the  law  will  not  indulge.  It  is 
true  that  the  lawful  exercise  of  this  pri- 
vilege Mill  produce  the  eff'ect  of  defraud- 
ing others,  in  many  cases.  As  where 
an  infant  has  bought  a  horse,  and  given 
his  note  for  the  value,  and  then  avoids 
liis   note  by   a  plea   of  infancy ;    and 


VOL.    I. 


24 


has  sold  the  horse,  spent  the  money  re- 
ceived, and  is  unable  to  pay  the  value 
of  the  horse :  in  this  case  the  adult  may 
be  defrauded,  but  it  is  because  the  minor 
is  unable  to  pay,  or  make  him  satisfac- 
tion.    But  how,  in   point  of  principle 
and  good  sense,  would  the  cpse  be,  if 
the   infant  were  in   possession   of  the 
horse  at  the  time  he  avoided  the  note  ? 
Would  not  the  whole  contract  be  utterly 
void,  and  as  much  blotted  out  of  exist- 
ence, as   if   it  had  never  been  1    and 
would  not  the  horse  then  be  the  pro- 
perty of  the  adult,  the  infant  having  re- 
ceived the  full  benefit  of  his  privilege ; 
that  is,  the  privilege  of  not  being  bound 
by  his  contract  ?     And  if  the  property 
of  the  horse  were  in  the  adult,  he  might 
retake  him  in  a  peaceable  manner  pre- 
scribed by  law,  and  might  demand  liim 
of  the  infant ;  and  in  the  case  of  refusal 
might  bring  an  action  of  trover  against 
the  minor,  for  convertiug  the  horse  to 
his  own   use."    Judge   Metcalf,   in  his 
very  valuable   articles  on  the  Law  of 
Contracts,  in  the  American  Jurist,  says, 
vol.  20,  p.  260  : —  "  But  where  the  in- 
fant refuses  to  pay  for  articles  sold  to 
him,  the  other  party  cannot  retake  the 
articles ;    and  where    he  has   received 
money  for  property  which  he  engaged  to 
deliver   to    the  purchaser,    and    after- 
wards refuses  to  deliver,  his  privilege 
(as  it  is  termed)  is  his  defence.     This 
is   manifestly  inequitable,   and  Judge 
Keeve  therefore  zealously  contends  that 
such  is  not  the  law.     But  the  principles 
of  the  law  of  infancy,  seem  io  lead  to 
this  result,  and  the  authorities  to  be  too 
stubborn  to  be  resisted.''     We  confess 
that  we  think  the  views  of  Judge  Reeve 
more  consonant  with  the  principles  of 
law,  as  well  as  of  equity.     The  infant 
is  not  bound  by  his  promise;  but  this 
must  mean  that  the  promise  was  void, 
or  may  be  made  void,  and  when  void  it 
is  as  if  it  had  not  been  ;  and  therefore 
when  the  infant  has  defeated  the  claim 
of  the  seller  for  the  price  by  avoiding 
his  promise,  there  is  an  end  of  the  con- 
tract.    We  see  no  sufficient  reason  for 
connecting  his  subsequent  wrongdoing 

[277] 


268' 


THE   LAW   OF   CONTRACTS. 


[BOOK   I. 


to  be  admitted  that  if  the  infant  has  received  the  goods  and 
paid  for  them,  he  cannot  avoid  the  contract  and  recover  the 
money  paid,  without  redelivering  the  goods,  (pp) 


SECTION  V. 

OF  THE   EFFECT   OF   AN    INFANT'S  AVOIDANCE   OF   HIS    CONTRACT. 

Every  executory  contract  may  be  avoided  by  an  infant, 
and  then  the  adult  dealing  with  him  is  relieved  from  his  part 
of  the  contract ;  as  if  the  contract  were  for  the  sale  of  a  horse 
by  the  infant,  and  the  infant  refuses  to  deliver  the  horse,  the 
adult  of  course  may  refuse  to  pay  the  price.  But  if  it  be 
executed  on  the  part  of  the  adult, — as,  for  instance,  by  the 
payment  in  advance  for  the  horse, —  and  the  infant  then  an- 
nuls the  contract,  and  refuses  to  deliver  the  horse,  the  rights 
of  the  other  party  are  not  so  certain,  (q)  If,  previous  to  the 
*  contract,  the  infant  fraudulently  represented  himself  as  of 
age,  we  have  seen,  that  for  this  fraud  he  may  be  answerable. 
But,  if  there  were  no  such  representations,  it  is  not  clear  that 


in  refusing  to  redeliver  the  property, 
with  the  contract,  so  as  to  say  the 
owner  now  sues  substantially  for  a 
breach  of  the  contract,  although  form- 
ally, in  tort.  He  demands,  in  fact  as 
well  as  in  form,  damages  for  the  wrong- 
ful detention  of  property  which  is  his, 
because  it  was  his,  and  has  never  passed 
out  of  him  but  by  a  contract  which  the 
infant  has  exercised  his  right  of  rescind- 
ing. We  think  the  case  of  Vasse  v. 
Smith,  6  Cranch,  226,  rests  upon  simi- 
lar principles.  There  the  defendant  re- 
ceived goods  as  supercargo,  but  disposed 
of  them  in  disobedience  to  the  orders  of 
the  owner,  who  brought  trover.  The  de- 
fendant pleaded  and  proved  infanc}-,  and 
the  court  below  held  it  to  be  a  sufficient 
defence.  Marshall,  C.  J.,  in  delivering  the 
opinion  of  the  supreme  court,  said:  — 
"  This  court  is  of  opinion  that  infancy 
is  no  complete  bar  to  an  action  of  tro- 
ver, although  the  goods  converted  be  in 
his  possession,  in  virtue  of  a  previous 
contract.  The  conversion  is  still  in  its 
nature  a  tort;  it  is  not  au  act  of  omis- 


sion, but  of  commission,  and  is  within 
that  class  of  offences  for  which  infancy 
cannot  afford  protection.  .  .  .  This 
instruction  of  the  court  (below)  must 
have  been  founded  on  the  opinion  that 
infancy  is  a  bar  to  an  action  of  trover  for 
goods  committed  to  the  infant  under  a 

contract This    court    has 

already  stated  its  opinion  to  be,  that  an 
infant  is  chargeable  with  a  conversion, 
although  it  be  of  goods  which  came  law- 
fully to  his  possession."  We  think 
that  Badger  v.  Phinney,  15  Mass.  359, 
and  Fitts  v.  Hall,  9  New  Hamp.  441, 
imply  similar  principles. 

(pp)  Holmes  v.  Blogg,  8  Taunt.  508; 
Bailey  v.  Bamberger,  11  B.  Mon.  113  ; 
Smith  V.  Evans,  5  Humph.  70 ;  Cum- 
mings  V.  Powell,  8  Texas.  SO.  And  see 
Harney  v.  Owen,  4  Blackf.  337  ;  Weeks 
V.  Lcighton,  5  N.  H.  343 ;  Medbury  v. 
Watrous,  7  Hill,  110. 

(q)  See  Shaw  v.  Boyd  5  S.  &  R. 
309 ;  Crymes  v.  Day,  1  Bailey,  320 ; 
Jones  V.  Todd,  2  J.  J.  Marsh.  361 ;  20 
Am.  Jur.  260. 


[278] 


CH.   XVI.]  INFANTS.  -268 

the  adult  party  has  any  remedy.  He  cannot  bring  trover  for 
the  horse,  for  it  was  never  his  ;  nor  case,  unless  he  can  found 
his  action  upon  a  wrong  independent  of  the  contract ;  he  can- 
not therefore  recover  the  money  unless  on  the  ground  that  the 
entire  avoidance  of  the  sale  has  left  the  infant  in  possession  of 
money  which  belongs  only  to  the  adult.  If  the  infant  disaffirms 
a  sale  that  he  has  made,  and  reclaims  the  property  he  sold,  it 
seems  now  quite  well  settled  that  he  must  return  the  pur- 
chase-money, (r) 

If,  during  infancy,  he  has  destroyed  or  parted  with  the  pro- 
perty he  purchased  before  a  demand  was  made  upon  him  for 
it  subsequently  to  his  disaffirmance,  the  seller,  as  we  have 
said,  is  remediless ;  but  if  he  destroys  or  disposes  of  the  pro- 
perty after  coming  of  age,  this  must  be  regarded  as  a  con- 
firmation of  the  contract,  (s) 

If  an  infant  advances  money  on  a  voidable  contract,  which 
he  afterwards  rescinds,  he  cannot  recover  this  money  back, 
because  it  is  lost  to  him  by  his  own  act,  and  the  privilege  of 
infancy  does  not  extend  so  far  as  to  restore  this  money,  un- 
less it  was  obtained  from  him  by  fraud.  Whether  an  infant 
who  has  engaged  to  labor  for  a  certain  period,  and,  after  some 
part  of  the  work  is  performed,  rescinds  the  contract,  can  re- 
cover for  the  work  he  has  done,  has  been  differently  decid- 
ed, (l)  The  principle  upon  which  the  rule  is  founded  that 
forbids  the  infant's  recovery  of  money  advanced  by  him  on  a 
contract  which  he  has  rescinded,  would  appear  to  lead  to  the 
conclusion  that  he  could  not  recover  for  the  work  he  had 
done  ;  but  the  weight  of  authority  seems  to  be  the  other  way. 
As  to  the  time  of  an  infant's  disaffirmance  of  his  contract,  it 
may  be  said,  in  general,  that  he  cannot  avoid  a  sale  of  lands, 

(r)  Badger  y.Phinney,  15  Mass.  363  ;  paid,  the  infant  cannot  avoid   his  in- 

Hubbard  v.  Cummings,  1   Grcenl.  13;  dorsement,  because   he  cannot  restore 

Smith  w.  Evans,  5  liiunph.  70;  Farr  «'.  the  maker  of  the    bill   or   note   to  the 

Sumner,  12  Verm.  28.     Sec  also  Taft  same  condition  as  before.    See  Dulty  i'. 

&  Co.  V.  Pike,  U  Verm.  405.     And  for  Brownfield,    1    Barr.    497  ;    Willis   v. 

the  rule  in  chancery,  that  if  an  adult  Twambly,  13  Mass.  204;    Nightingale  r. 

files  his  bill  to  set  aside  a  conveyance  Withington,  15  Mass.  272. 

made  when  under  age,  he  must  offer  to  (s)  Cheshire  v.    Barrett,  4  McCord, 

restore  the  purchase-money,  see  Ilillyer  241 ;  Deason  v.  Boyd,  1  Dana,  45  ;  Law- 

V.  Bennett,  3  Edwards's  Chancery,  222.  son  v.  Lovejoy,  8  Greenl.  405. 

So  if  the  indorsee  of  ^an  infant  payee  is  {I)  See  note  (/)  supra,  p.  *263. 

[279] 


269  THE  LAW  OF  CONTRACTS.  [BOOK  I. 

conclusively,  until  of  full  age,  (u)  although  he  may  enter 
while  under  age  and  take  and  hold  the  profits,  (v)  The  dis- 
affirmance may  be  by  any  appropriate  legal  process,  or  by 
any  act  on  his  part  showing  conclusively  his  purpose  of  an- 
nulling the  sale.  Contracts  which  relate  only  to  the  person 
or  to  personal  property  may  be  avoided  at  any  time,  and  by 
any  act  clearly  manifesting  this  purpose,  (iv)  And  this  right 
may  be  exercised  against  all  equities  of  purchasers  from  the 
grantee,  or  other  persons,  (re) 

An  infant  stands  on  the  same  footing  as  an  adult,  in  re- 
spect to  his  rights  to  reclaim  money  on  a  failure  of  consider- 
ation, or  because  obtained  by  fraud,  or  to  rescind  contracts 
for  good  cause. 

SECTION  VI. 

OF  RATIFICATION. 

As  the  liability  of  the  infant  is  defeated  by  the  law,  for  his 
protection,  therefore,  as  we  have  already  seen,  when  he  is  of 
full  age,  he  may,  if  he  pleases,  confirm  and  ratify  a  contract 
entered  into  by  him  during  infancy,  and  this  by  parol,  (y) 
But,  for  this  ratification,  a  mere  acknowledgment  that  the 
debt  existed  or  that  the  contract  was  made  is  not  enough,  (z) 
It  need  not  be  a  precise  and  formal  promise ;  but  it  must  be 

(u)  Stafford  v.  Roof,  9  Cowen,  626 ;  sufficient.     Harris  v.  Wall.  1  Exch.  R. 

Bool  V.  Mix,  17  Wend.  120;  Matthew-  122.     See  also  Hartley  v.  Wharton,  11 

son  V.  Johnson,  1  Hoffman's  Chancery,  Ad.  &  El.  934.     A  similar  statute  ex- 

560;  Shipman  v.  Horton,  17  Conn.  481;  ists  in  Maine.  —  In  Baylis  v.  Dinely,  3 

Cummings  v.  Powell,  8  Tex.  80.     See  M.  &  S.  477,  it  seems  to  have  been  held 

also  ante,  p.  243,  note  («).  that  an  instrument  under  seal,  executed 

(v)  Stafford  v.  Roof,  9  Cow.  626.  while  the  maker  was  an  infant,  could 

(ic)  See  supra,  note  (u).  Yor  a  dictum  not  be  affirmed  by  parol.     But  this  is 

contra,   see    Boody  v.    McKenney,   23  believed   to  be   inconsistent   with   true 

Maine,  517.     See  also  Earr  i;.  Sumner,  principle    and   analogous   cases.      See 

12  Verm.  28.  Hoyle  v.  Stowe,  2  Dev.  &  Batt.  320 ; 

(a:)  Myers  v.  Sanders,  7  Dana,  506 ;  Wheaton  v.  East,  5  Yerg.  41  ;  Houser 

Hill  y.  Anderson,  5  S.  &  M.  216.  v.  Reynolds,   1   Hayw.   143.      But  see 

(y)  In  England,  by  stat.  9  Geo.  4,  c.  Clamorgan  v.  Lane,  9  Missouri,  446. 
14,  §  5,  it  is  now  necessary  that  the  new 

promise  or  ratification  be  in  writing,  (z)  Bobbins  r.  Eaton,  10  New  Hamp. 
aiid  signed  by  the  party  to  be  charged  561;  Thrupp  v.  Fielder,  2  Esp.  628; 
thereby.  And  any  written  instrument  Ordinary  r.  Wherry,  1  Bailey,  28;  Ben- 
signed  by  the  party,  which  in  an  adult  ham  v-  Bishop,  9  Conn.  330;  Alexan- 
would  be  an  adoption  or  ratification  of  der  v.  Hutcheson,  2  Hawks,  535  ;  Eord 
an  act  done  by  one  acting  as  agent,  is  v.  Phillips,  1  Pick.  203. 

[280] 


CH.  XVI.j 


INFANTS. 


270 


a  direct  and  express  confirmation,  and  substantially  (though 
it  need  not  be  in  form)  a  promise  to  pay  the  debt  or  fulfil 
the  contract,  (a)  It  must  be  made  with  the  deliberate  pur- 
pose of  assuming  a  liability  from  which  he  knows  that  he  is 
discharged  by  law,  and  under  no  compulsion ;  [b)   and  to  the 


(a)  See  Goodsell  v.  Myers,  3  Wend, 
479 ;  Rogers  v.  Hurd,  4  Day,  57 ;  Wil- 
cox V.  Roath,  12  Conn.  550;  Hale  v. 
Gerrish,  8  New  Hamp.  374  ;  Bigeloww. 
Grannis,  2  Hill,  120;  Willard  v.  Hew- 
lett, 19  Wend.  301.  The  cases  are  well 
collected  in  Bingham  on  Infancy,  Am. 
cd.  p.  69,  note.  "No  particular  words 
seem  necessary  to  a  ratification,  and 
provided  they  import  a  recognition  and 
confirmation  of  his  promise,  they  need 
not  be  a  direct  promise  to  pay.  Whit- 
ney V.  Dutch,  14  Mass.  460,  Parker,  C. 
J.;  Hale  v.  Gerrish,  8  New  Hamp.  376 ; 
as  '•  I  have  not  the  money  now,  but 
when  I  return  from  my  voyage  I  will 
settle  with  you ; "  and  "  I  owe  you,  and 
will  pay  you  when  I  return,"  have  been 
held  a  sufficient  ratification.  Martin  v. 
Mayo,  10  Mass.  137  ;  also,  these  words, 
"I  will  pay  it  (the  note)  as  soon  as  I 
can  make  it,  but  not  this  year.  I  un- 
derstand the  holder  is  about  to  sue  it, 
but  she  had  better  not."  Bobo  v.  Han- 
sell,  2  Bailey,  (S.  C.)  114.  So  a  pro- 
mise to  endeavor  to  procure  the  money 
and  send  it  to  the  creditor  is  sufficient. 
Whitney  v.  Dutch,  14  Mass.  457  ;  and 
where  a  minor  after  coming  of  age 
wrote  to  the  plaintiff,  "  I  am  sorry  to 
give  you  so  much  trouble  in  calling,  but 
I  am  not  prepared  for  you,  but  will 
without  neglect  remit  you  in  a  short 
time,"  this  was  held  a  sufficient  ratifica- 
tion. Hartley  v.  Wharton,  11  Ad.  & 
El.  934.  See  also  Harris  v.  Wall,  1 
Exch.  128,  where  it  is  said  that  any 
written  instrument  signed  by  the  infant, 
which  in  the  case  of  adults  would  have 
amounted  to  the  adoption  of  the  act  of 
a  party  acting  as  agent,  will,  in  the  case 
of  an  infant  who  has  attained  his  major- 
ity, amount  to  a  ratification.  A  decla- 
ration of  an  intention  to  pay  a  note,  and 
authorizing  an  agent  to  take  it  up,  has 
been  held  a  good  ratification,  although 
the  agent  had  done  nothing  about  it. 
Orvis  V.  Kimball,  3  New  Hamp.  314 ; 
see  further  Best  v.  Givens,  3  B.  Monr. 
72.  On  the  other  hand,  an  admission 
by  an  infant  that  he  owed  the  debt,  and 
that   the  adult  would  get  his  pay,  but 

24* 


at  the  same  time  refusing  to  give  his 
note,  was  considered  no  ratification  of 
the  original  promise.  Hale  v.  Gerrish, 
8  New  Hamp.  374  ;  and  so  these  words, 
"  I  owe  the  plaintiff^,  but  am  unable  to 
pay  him,  but  will  endeavor  to  get  my 
brotlier  bound  with  me."  Ford  v.  Phil- 
lips, 1  Pick.  202  ;  likewise  the  language, 
"  I  consider  your  claim  as  worthy  my 
attention,  but  not  my  first  attention," 
adding  he  would  soon  give  it  the  atten- 
tion clue  it.  Wilcox  v.  Roath,  12 
Conn.  550  ;  and  where  a  minor  gave 
his  note,  and  a  part  of  which  he  subse- 
quently paid,  and  in  his  will  made  after 
attaining  majority  directed  the  payment 
of  his  just  debts,  this  was  held  no  I'atifi- 
cation  as  to  the  residue  of  the  note. 
Smith  V.  Mayo,  9  Mass.  62;  but  see 
Wright  V.  Steele,  2  New  Plamp.  51  ;  20 
Am.  Jur.  269  ;  Merchants,  &c.,  v.  Grant, 
2  Edw.  Ch.  R.  544.  And  where  a  mi- 
nor received  money,  which  he  promised 
in  writing  to  pay  to  another  when  re- 
quested, and,  on  being  applied  to,  said 
it  was  not  convenient  to  pay  then,  but 
expressed  an  intention  to  do  so  on  his 
arrival  at  Honduras  ;  this  was  held  no 
ratification  of  his  promise  to  repay,  how- 
ever otherwise  he  might  have  been  lia- 
ble. Jackson  i'.  Mayo,  11  Mass.  147. 
Neither  is  a  submission  to  arbitration, 
whether  he  is  liable  or  not,  on  his  note, 
a  ratification.  Benham  v.  Bishop,  9 
Conn.  330 ;  nor  is  a  partial  payment  any 
ratification  to  the  remainder.  Thrupp 
V.  Fielder,  2  Esp.  628 ;  Bobbins  v.  Eaton, 
10  New  Hamp.  561  ;  Hinely  v.  Marga- 
ritz,  3  Barr,  428.  If  the  ratification  is 
conditional,  as,  to  pay  when  able,  the 
plaintiff"  must  show  the  happening  of 
the  contingency,  but  not  that  the  de- 
fendant could  pay  without  inconvenience. 
Thompson  v.  Lay,  4  Pick.  48 ;  Cole  v. 
Saxby,  3  Esp.  159;  see  also  Davis  v. 
Smith,  4  Esp.  36  ;  Besford  v.  Saunders, 
2  H.  Bl.  116;  Martin  v.  Mayo,  10  Mass. 
Rand's  ed.  141,  n.  {c)  ;  Everson  v.  Car- 
penter, 17  Wend.  419." 

(6)  Ford  V.  Pliillips,  1  Pick.  202; 
Smith  r.  Maj'O,  9  Mass.  64;  Curtin  v. 
Patton,  1 1  Serg.  &  Rawle,  307  ;  Harmer 

[281] 


271  THE  LAW  OF  CONTRACTS.  [BOOK  I. 

party  himself  or  his  agent,  (c)  It  may  be  conditional,  and 
in  that  case  the  party  relying  upon  it  must  show  that  the 
condition  has  been  fulfilled,  (d)  But  it  is  perhaps  now  set- 
tled that  a  ratification  will  not  maintain  an  action  brought 
before  such  ratification,  (e) 

The  mere  fact  that  an  infant  does  not  disaffirm  a  contract 
after  he  is  of  full  age,  is  not,  it  would  seem,  of  itself  a  confirm- 
ation ;  (ee)  but  this  fact  may  be  made  significant  by  circum- 
stances ;  if  coupled  with  a  continued  possession  and  use 
of  property,  or  a  refusal  to  redeliver  the  same,  and  an  asser- 
tion of  ownership,  it  may  frequently  raise  by  implication  of 
law  such  confirmation  and  a  promise  to  pay  for  the  property  ; 
especially  if  either  this  intention  and  promise  to  pay  must  be 
presumed,  or  a  fraud.  Indeed,  any  act  of  ownership,  after  full 
age,  may  have  this  effect ;  but  it  must  be  unequivocal. 

The  purchases  of  an  infant  may  be  far  more  easily  ratified 
than  his  conveyances  of  real  estate.  To  affirm  the  latter 
some  positive  act  seems  to  be  necessary,  and  mere  acqui- 
escence, or  failure  to  disaffirm,  although  continued  beyond  a 
reasonable  time,  has  frequently  been  adjudged  not  sufficient 
to  bind  the  minor.  (/)     It  has  been  held  in  England  that  an 


V.  Killing,  5  Esp.  102  ;  Brooke  v.  Gaily,  he  became  of  age,  he  conveyed  the  same 

2Atk.  34;  Hinely  y.  Margaritz,  3  Barr,  premises   to  B.     A.  claimed   that    the 

428.  first  deed  was  only  voidable,  and  not 

(c)  Goodsell  V.  Myers,  3  Wend.  479  ;  void,  and  that  there  had  been  an  acqui- 
Bigelow.w.  Grannis,  2  Hill,  120  ;  Hoitv.  escence  for  so  long  a  time  after  the  in- 
Underhill,  9  New  Hamp.  436.  fant  arrived  at  full  age,  that  it  amounted 

(d)  Thompson  v.  Lay,  4  Pick.  48 ;  to  a  confirmation  of  the  first  convey- 
Cole  V.  Saxby,  3  Esp.  159.  See  also  ance,  before  the  second  was  executed. 
Davies  v.  Smith,  4  Esp.  36  ;  Besford  But  the  court  said,  in  giving  their  opi- 
y.  Saunders,  2H.  Bl.  116;  Everson  v.  nion  :  —  "  Tlie  cases  cited  by  the  de- 
Carpcnter,  17  Wend.  419.  fendant's  counsel,  to  this  point,  do  not 

(e)  Thornton  v-  lUingworth.  2  B.  &  support  it  to  the  extent  contended  for. 
C.  824  ;  Ford  v.  Phillips,  1  Pick.  202  ;  In  all  of  them  it  appears  that  some  act 
Thing  V.  Libbey,  16  Maine,  55 :  Mer-  of  the  infont,  after  he  is  twenty-one 
riam  v.  Wilkins,  6  New  Hamp.  432,  years  of  age,  is  required  to  evince  his 
(overruling  the  earlier  case  of  Wright  assent;  they  are  only  instances  of  pur- 
V.  Steele,  2  New  Hamp.  51);  Haley,  chases  made,  or  leases  given,  rendering 
Gerrish,  8  New  Hamp.  374  ;  Goodridge  a  rent  by  which  either  the  continuance 
V.  Ross,  6  Met.  487.  in  possession  or  receipt  of  the  rent  re- 

(ee)    Bennett's  note   to  Dublin  and  served  shows  his  assent  afterwards.     In 

Wicklow  Railway  Co.  w.  Black,  16  E.L.  the  present  case,  no  act  of  the  infant 

&  E.  558.   But  see  post  notes  (f)  and  {i)  appears  since  he  arrived  at  full  age,  by 

'{/)  In  Jackson  v.  Carpenter,  ll  which  this  assent  could  be  inferred,  ex- 
Johns.  539,  an  infant  conveyed  land  to  cept  mere  omission.  He  has  possessed 
A.  in  fee  in  the  military  tract,  in  1784.  no  property,  nor  has  he  received  rent. 
Afterwards  in  1796,  and  ten  years  after  The  confirmation  of  this  sale,  conse- 
[282] 


CF.  XVI.] 


INFANTS. 


272-*  273 


infant's  bond  could  not  be  ratified  but  by  an  instrument  of 
equal  solemnity.  But  this  has  been  doubted  for  strong  rea- 
*  sons.  (  g")     But  whether  verbal  declarations  can,  in  any  event 


quently,  can,  in  no  point  of  vie^v,  turn 
out  to  his  advantage,  nor  can  his  neg- 
lect to  do  any  thing  from  1784  till  1796 
destroy  his  title.     It  would  be  contrary 
to  the  benign  principles  of  the  law,  by 
which  the  imbecility  and  indiscretion  of 
infants   are    protected   from   injury   to 
their  property,  that  a  mere  acquiescence, 
without  any  intermediate  or  continued 
benefit,  showing  his  assent,  should  ope- 
rate as  an  extinguishment  of  his  title." 
So,  in  Jackson  v.  Burchin,  14  Johns. 
1 24,  an  infant  in  1 784,  and  while  between 
nineteen  and  twentj'  years  of  age,  con- 
veyed wild  and  unoccupied  land  in  fee, 
and  in  1795  executed  another  convey- 
ance of  the  same  premises,  not  having 
in  the  mean  time  after  his  arrival  of  full 
age  made  any  entiy  on  the  premises. 
It  was  also  proved  that  the  infant,  after 
ho   came  of  age,  had  stated  to  others 
that  he  had  sold  his  land  to  [the  first 
grantee.]     The  defendant   also   offered 
to  prove  that  the  infant,  after  he  became 
of  full  age  declined  to  sell  the  premises 
on   one   occasion,  because  he  had   pre- 
viously sold  it,  but  this  was  overruled. 
Spencer,  J.,  in  delivering  the  opinion, 
observed :  — "  I  perceive  no  evidence  of 
the  affirmance  of  the  first  deed  by  the 
infant  after  he  came  of  age."     These 
cases  were  commented  upon  in  Bool  v. 
Mix,  17  Wend.  120.  and  the  court  in- 
cline to  the  same  general  doctrine.     So 
in  Tucker  v.  Moreland,  10  Peters,  58, 
Mr.  Justice  Story  observed :  —  "To  as- 
sume, as  a  matter  of  law,  that  a  volun- 
tary  and   deliberate    recognition   by  a 
person,  after  his  arrival  at  age,  of  an 
actual  conveyance  of  his  right,  dui-ing 
his  non-age,  amounts  to  a  confirmation 
of  such  conveyance  ;  or  to  assume  that 
a  mere  acquiescence  in  the  same  con- 
veyance, without  objection,  for  several 
months  after  his  arrival  at  age,  is  also 
a  confirmation  of  it,  are  not  maintain- 
able.    The  mere  recognition  of  the  fact 
that  a  conveyance  has  been  made,  is 
not,  per  se,  proof  of  a  confirmation  of 
it."-   In  Lessee  of  Drake  v.  Kamsay,  5 
Hammond,  251,  the  court  remarked':  — 
"  In  our  opinion  lapse  of  time  mai/  fre- 
quently furnish  evidence  of  acquiescence, 
and  thus  confirm  the  title  [of  the  first 
purchaser]  ;  but  of  itself  it  does  not 


take  away  the  right  to  avoid  until  the 
statute  of  limitations  takes  effect."  The 
same  doctrine  was  afterwards  affirmed 
in  Cresinger  v.  Lessee  of  Welch,  15 
Ohio,  R.  193.  In  the  very  able  case  of 
Doe  V.  Abernathy,  7  Blackf.  442,  it  ap- 
peared that  a  female  infant,  residing  in 
Pennsylvania,  executed  there  a  deed  of 
bargain  and  sale  for  laud  situate  in  that 
State.  She  afterwards  married,  but 
whether  befoi-e  or  after  her  majority  did 
not  appear,  nor  did  it  appear  where, 
after  the  execution  of  the  deed,  she  and 
her  husband  had  resided,  nor  that  her 
husband  had  acquiesced  in  the  deed 
after  he  knew  of  it.  Held,  that  the 
lapse  of  about  five  years  after  the  wife's 
majority,  without  any  attempt  to  dis- 
affirm the  conveyance!!  did  not,  under  the 
circumstances,  prevent  the  husband  and 
wife  from  disaffirming  it.  In  Boody 
V.  McKenney,  23  Maine,  523,  Shepley, 
J.,  tlms  lays  down  the  law  on  this 
subject :  — '"'  When  a  person  has  made 
a  conveyance  of  real  estate  during 
infancy,  and  would  affirm  or  disaffirm 
it  after  he  becomes  of  age,  in  such  case 
the  mere  acquiescence  for  year^  to  dis- 
affirm it  aft'ords  no  proof  of  a  ratification. 
There  must  be  some  positive  and  clear 
act  performed  for  that  purpose.  The 
reason  is,  that  by  his  silent  acquiescence 
he  occasions  no  injury  to  other  persons, 
and  secures  no  benefits  or  new  rights  to 
himself.  There  is  nothing  to  urge  him 
as  a  duty  towards  others  to  act  speedily. 
Language  appropriate  in  other  cases, 
requiring  him  to  act  within  a  reasona- 
ble time,  would  become  inappropriate 
here.  He  may,  therefore,  after  years  of 
acquiescence,  by  an  entry,  or  by  a  con- 
veyance of  the  estate  to  another  person, 
disaffirm  and  avoid  the  conveyance  made 
during  his  infancy."  This  point  was 
discussed  in  Hoylc  v.  Stowe,  2  Dev.  & 
Batt.  320,  whereit  was  held  that  some 
act  of  affirmance  was  clearly  necessary, 
and  that  if  declarations  were  sufficient, 
they  must  be  clear  and  unequivocal,  and 
made  with  a  view  to  ratification.  In 
Houser  v.  Reynolds,  1  Hayw.  143,  sucb 
declarations  were  held  sufficient.  See, 
however,  Glamorgan  v.  Lane,  9  Mis- 
souri, 446. 

(g)  Parole  ratification  was   claimed 

[283] 


-273 


THE   LAW    OF   CONTRACTS. 


[book  I. 


ratify  an  instrument  under  seal,  it  is  quite  certain  that  if,  in 
an  instrument  under  seal,  a  person  recites  or  refers  to  a  former 
instrument  also  under  seal,  made  while  the  party  was  a 
minor,  this  is  a  ratification  of  the  first,  (h) 

In  some  cases  it  has  been  urged  that  even  a  silent  acqui- 
escence for  a  considerable  time  by  an  infant,  after  arriving  at 
full  age,  is  itself  a  ratification  of  his  conveyances,  (i) 


inBaylisi'.Dinely,3  M.  &S.477.  But 
see,  contra^  Hoyle  v.  Stowe,  2  Dev.  & 
Batt.  320;  Wheaton  v.  East,  5  Yerg. 
41 ;  Hoiiser  v.  Reynolds,  1  Hayward, 
143 ;  Scott  V.  Buchanan,  2  Humph. 
468.  But  see  Clamorgan  v.  Lane,  9 
Missouri,  446. 

{h.)  See  Story  v.  Johnson,  2  Younge 
&  Coll.  586  ;  Boston  Bank  v.  Chambcr- 
lin,  15  Mass.  220;  Phillips  v.  Green,  5 
Monroe,  344. 

(/)  In  Kline  i".  Beebe,  6  Conn.  494, 
where  an  infant,  having  executed  a 
deed  of  conveyance  in  1791,  at  the  age 
of  eighteen  years,  held  the  note  given 
for  the  consideration  four  years,  and 
then  married  ;  her  husband  held  it  until 
her  death  in  1815,  and  continued  to 
hold  it  eleven  years  afterwards ;  and, 
during  the  whole  period,  there  was  no 
act  or  expression  of  disaffirmance,  and 
the  grantee  was  permitted  to  remain  in 
the  undisturbed  occupation  of  the  land, 
it  was  held  that  there  was  both  an  im- 
plied and  a  tacit  affirmance.  Hosmer, 
C.  J.,  said:  —  "The  deed  in  question 
has  been  ratified  by  every  implied  mode 
of  affirmance.  The  consideration  note 
was  held  by  P.  Bolles  a  year  after  her 
arrival  at  full  age,  and  before  her  mar- 
riage, and  by  the  plaintiff  has  been  held 
ever  since.  During  all  this  period,  until 
the  commencement  of  the  plaintiff's 
action,  a  profound  silence  was  observed 
relative  to  the  disaffirmance  of  the  con- 
tract; and  the  defendant  was  permitted 
to  remain  in  the  unquestioned  occu- 
pation of  the  land.  These  acts  imply 
an  affirmance  of  the  deed,  not  unlike 
the  holding  possession  of  land  leased  or 
exchanged,  and  authorized  the  same  in- 
ference. Besides,  the  omission  to  dis- 
affirm alone,  for  eleven  years,  a  period 
almost  sufficient  to  give  title  by  posses- 
sion, is  an  acquiescence  in  the  convey- 
ance amounting  to  a  tacit  affirmance." 
This  case  was  cited  with  approbation  in 
Richardson  v.  Boright,  9  Verm.  368, 
where  Bedfield,  J.,  said  :  —  "  lu  the  case 
[284] 


of  evei-y  act  of  an  infant  merely  voida- 
ble, he  must  disaffirm  it  on  coming  of 
full  age,  or  he  will   be  bound  by  it." 
See  also  Holmes  v.  Blogg,  8  Taunt.  35, 
Dallas,  J. ;  2  Kent,  Comm.  238.  —  The 
case  of  Wallace  v.  Lewis,  4  Harring. 
75,  is  a  strong  case  against  the  right  of 
disaffirmance.     There   a   minor,   when 
wanting  only  four  months  of  his  major- 
ity, conveyed  his  land  in  fee  by  deed  in 
proper   form,  and   the   purchaser  went 
into  immediate  possession,  and  greatly 
improved   the   premises.      The   infant, 
four  years  after,  brought  his  action  of 
ejectment  against   his  own  grantee,  to 
recover  the  same  premises.     It  was  held 
that  his  silence  for  four  years  after  he 
became  of  age  was  a  waiver  of  his  right 
to  disaffirm,  and  that  he  could  not  re- 
cover.   And  see  also  Scott  v.  Buchanan, 
1 1  Humph.  468.    But  see  Moore  v.  Aber- 
nathy,  7  Blackf442.     So  in  Wheaton  v. 
East,  5  Yerg.  41,  it  was  held  that  any  act 
of  a  minor,  from  which  his  assent  to  a 
deed  executed  during  his  minority  may 
be  inferred,  will  operate  as  a  confirma- 
tion, and  prevent  him  thereafter  from 
electing    to    disaffirm    it.       Therefore 
where  the  minor  had  done  no  act  from 
which  a  dissent  or  disaffirmance  might 
be  inferred,  for  three  or  four  years  after 
he  arrived  at  twenty-one,  but  where  he 
admitted  he  had  sold  the  land,  said  he 
was  satisfied,  offered  to  exchange  other 
lands  for  it,  and  saw  the  bargainee  put- 
ting on  improvements  without  objection, 
it  was    held   that  these  were  sufficient 
acts  from  which  to  infer  a  confirmation. 
We  have  thus  fully  referred  to  the  au- 
thorities on  the  subject  of  the  ratifica- 
tion of  ('onveyances,  because  there  is,  as 
will  be  seen  by  a  reference  to  the  fore- 
going cases,  not  a  little  conflict  between 
them.    On  tiie  other  hand,  as  lo  purchases, 
the  law  is  well  settled;  and  if  an  infant  re- 
tains property  purchased,  whether  real  or 
personal,  and  gives  no  notice  of  an  inten- 
tion to  disaffirm,  for  an  unreasonable 
length  of  time  after  he  arrives  at  full 


CH.  XVI.] 


INFANTS. 


-273 


If  any  act  of  disaffirmance  is  necessary  to  enable  an  in- 
fant after  attaining  his  majority  to  avoid  his  conveyance 
made  while  a  minor,  it  is  now  well  settled  that  the  execution 
of  a  second  deed,  which  is  inconsistent  with  the  former  deed, 
is  itself  a  disaffirmance  of  the  former  deed,  although  the 
infant  had  not  previously  manifested  any  intention  to  avoid 
it,  and  had  made  no  entry  upon  the  premises  conveyed.  The 
old  rule,  requiring  such  entry  before  the  infant  could  make 
another  conveyance,  has  long  since  been  done  away,  (j)  In 
some  of  our  States,  however,  a  sale  of  lands  can  be  made 


age,  and  especially  if  he  uses  the  pro- 
perty, sells  it,  or  mortgages  it,  or  exer- 
cises any  unequivocal  act  of  ownership 
over  it,  without  any  notice  to  the  other 
party  of  an  intention  to  disaiBrm,  this 
is  clearly  sufficient  evidence  of  a  rati- 
fication. Some  of  the  leading  cases  on 
this  subject  are  Boyden  v.  Boyden,  9 
Met.  519  ;  Boody  v.  McKenny,  23 
Maine,  517;  Hubbard  v.  Cummings,  1 
Greenl.  11,  where  this  doctrine  is  ap- 
plied to  the  purchase  of  real  estate ;  Co. 
Litt.  51,  b;  Bobbins  v.  Eaton,  10  New 
Hamp.  561  ;  Cheshire  v.  Barrett,  4  Mc- 
Cord,  241  ;  Lawson  v.  Lovejoy,  8 
Greenl.  405  (Bennett's  ed.  and  note)  ; 
Alexander  v.  Heriot,  Bailey,  Ch.  223  ; 
Armfield  v.  Tate,  7  Ired.  258  ;  Kitchen 
V.  Lee,  11  Paige,  107  ;  Deason  v.  Boyd, 
1  Dana,  45.  —  And  where  an  infant,  a 
few  days  before  he  became  twenty-one, 
purchased  a  note  and  drew  an  order  on 
a  third  person  for  the  payment,  but 
which  was  not  paid,  of  which  he  had 
notice,  it  was  held  in  a  suit  on  such 
order,  several  years  afterwards,  that  his 
failure  to  return  the  note  and  disaffirm 
the  contract,  after  he  became  of  age, 
warranted  the  inference  that  he  intended 
to  abide  by  it,  and  was  a  sufficient  an- 
swer to  the  defence  of  infancy.  Tho- 
rn asson  u.  Boyd,  13  Ala.  419.  In  De- 
lano V.  Blake,  1 1  Wend.  85,  where  an 
infant  took  the  note  of  a  third  person  in 
payment  for  work  done,  and  retained  it 
for  eight  months  after  he  came  of  age,  and 
then  offered  to  return  it,  and  demanded 
payment  for  his  work,  it  was  held,  in  an 
action  for  the  work  and  labor  performed 
by  him,  that  the  retaining  of  the  note 
for  such  a  length  of  time  was  a  rati- 
fication of  the  contract  made  during  in- 
fancy, especially  when,  in  the  mean 
time,  the  maker  "of  the  note  had  become 
insolvent,  the  debt  lost,  and  the  offer  to 


return  made  on  the  heel  of  that  event. 
In  Aldrich  v.  Grimes,  10  New  Hamp. 
194,  an  infant  bought  personal  property, 
with  a  right  of  return  if  it  was  not  liked. 
He  kept  it  two  months  after  he  was  of 
full  age,  and  after  he  had  been  requested 
to  return  it  if  he  did  not  like  it.  It  was 
held  a  confirmation.  In  the  late  case 
of  Smith  V.  Kelly,  1 3  Met.  309,  an  in- 
fant bought  goods  that  were  not  neces- 
saries, and  the  sellers,  three  days  before 
he  came  of  age.  brought  an  action 
against  him  for  the  price,  and  attached 
the  goods  on  their  writ.  The  goods 
remained  in  the  hands  of  the  attaching 
officer  at  the  time  of  the  trial  of  the 
action,  and  the  defendant  gave  no  no- 
tice to  the  plaintiffs,  after  he  came  of 
age,  of  his  intention  not  to  be  bound  by 
the  contract  of  sale.  Held,  that  there 
was  not  a  ratification  of  the  contract  of 
sale  by  the  defendant,  and  that  the 
action  could  not  be  maintained.  If  an 
infant  purchase  land,  and  at  the  same 
time  mortgage  it  for  the  purchase-mo- 
ney, so  that  the  whole  is  but  one  trans- 
action, the  retaining  of  possession  of  the 
land  beyond  a  reasonable  time  is  a  con- 
firmation of  the  mortgage,  and  any  act 
that  ratifies  the  mortgage  affirms  the 
deed.  Bigelow  v.  Kinney,  3  Verm. 
353;  Eichardson  v.  Boright,  9  Verm. 
3G8  ;  Bobbins  v.  Eaton,  10  New  Hamp. 
562 ;  Dana  v.  Coombs,  6  Greenl.  89  ; 
Hubbard  r.  Cummings,  1  Greenl.  II  ; 
Lynde  r.  Budd,  2  Paige,  191.  — Upon 
the  whole  it  may  be  saicl,  that  an  infant's 
conveyances  are  not  ratified  by  a  bare 
recognition  of  the  existence  of,  or  a 
silent  acquiescence  in  his  deed,  for  any 
period  less  than  the  period  of  statutory 
limitation.  See  the  cases  already  cited. 
ij)  Cresinger  u.  Welch,  15  Oiiio  R. 
156;  Hoyle  v.  Stowc,  2  Dcv.  &  Batt. 
320;  Tucker  v.  Moreland,  10  Peters, 
[285] 


274*-275* 


THE   LAW    OF   CONTRACTS. 


[book  I. 


only  by  one  in  possession  ;  and  in  that  case  the  infant  should 
enter  before  making  his  conveyance. 

*A  question  has  been  raised  in  relation  to  ratification  by  an 
infant,  whether,  if  the  contract  be  one  of  those  which  is  de- 
*clared  to  be  not  voidable,  but  void,  any  ratification  could 
restore  it.  And  contracts  by  an  infant  for  purposes  of  trade 
have  been  declared  absolutely  void.  But  the  exact  distinc- 
tion between  the  void  and  the  voidable  contracts  of  an  infant  is 
rather  obscure  ;  and  the  better  opinion,  as  well  as  the  stronger 
reason,  seems  to  be,  as  we  have  already  stated,  that  in  refer- 
ence to  its  ratification,  no  contract  is  void ;  or,  in  the  lan- 
guage of  Parke,  B.,  in  Williams  v.  Moore,  (k)  "  the  promise 
of  an  infant  is  not  void  in  any  case,  unless  the  infant  chooses 
to  plead  his  infancy."  (/) 


58 ;  Jackson  v.  Carpenter.  1 1  Johns. 
539 ;  Jackson  v.  Burchin,  14  Johns. 
124.  But  to  constitute  a  disaffirmance, 
the  second  deed  must  be  so  inconsistent 
with  the  first  that  both  cannot  consist- 
ently stand.  Eagle  Fire  Company  v. 
Lent,  6  Paige,  63.5  ;  Bingham  on  In- 
fancy, Bennett's  ed.  p.  60,  note. 

(Jc)  11  M.  &  W.  256. 

(/)  The  words  "void"  and  "voida- 
ble "  have  often  been  very  vaguely  used 
when  applied  to  contracts,  and  the  word 
void  has  been  frequently  used  to  denote 
merely  that  the  contract  was  not  bhid- 
ing,  and  as  expressing  no  opinion  whe- 
ther such  contract  might  or  might  not 
be  ratified.  Thus,  in  Conroe  v.  Birds- 
all,  1  Johns.  Cas.  127,  the  marginal 
note  indicates  that  the  court  held  the 
contract  " void"  and  the  ease  is  so  cited 
in  Mason  v.  Denison,  15  Wend.  71 ;  and 
in  2  Kent's  Com. 241 ;  but  the  language  of 
the  court  was:  — "  The  bond  is  voidable, 
only  at  the  election  of  the  infant."  So 
in  Curtin  v.  Patton,  11  S.  &  R.  311, 
Mr.  Justice  Duncan,  speaking  of  an  in- 
fant's contract  of  suretyship,  calls  it  in 
one  place  "  absolutely  void,"  but  in  the 
very  next  line  he  makes  use  of  such  ex- 
pressions as  "  conjirming"  "distinct  acts 
of  conjirmation"  &c.,  plainly  showing 
that,  while  calling  the  contract  void,  he 
did  not  mean  to  deny  that  it  was  sus- 

[286] 


ceptible  of  ratification,  and  if  so,  that  it 
was  not  "  absolutely  void,"  but  only 
voidable,  as  it  has  often  been  held  by 
the  same  court.  Hinely  v.  Margaritz, 
3  Barr,  428.  In  a  similar  manner.  Bay- 
ley,  J.,  in  Thornton  v.  Illingvvorth,  2  B. 
&  C.  824,  speaking  of  an  infant's  con- 
tract of  trade,  calls  it  void,  but  the  case 
clearly  shows  that  if  the  ratification 
which  was  shown  in  the  case  had  been 
before  the  action  was  commenced,  instead 
of  after,  the  infant  would  have  been 
bound,  a  conclusion  impossible,  had  the 
contract  been  really  void.  So  an  in- 
fant's acceptance  of  a  bill  of  exchange 
has  been  called  "  void,"  but  it  is  only 
voidable,  and  is  susceptible  of  a  ratifi- 
cation. Gibbs  V.  Merrill,  3  Taunt.  307. 
Another  instance  occurs  in  tlie  appli- 
cation of  the  word  "void"  to  fraudu- 
lent contracts,  but  they  are  only  voidable, 
and  if  the  person  defrauded  choose  to 
ratify,  he  may  do  so,  and  hold  the  other 
party.  Ayers  v.  Hewett,  19  Maine,  281. 
These  instances  are  sufficient  to  illus- 
trate the  vague  and  indefinite  use  of  the 
word  "void,"  and  may  perhaps  serve  to 
reconcile  the  conflicting  language  of 
some  cases,  and  to  account  for  the  ap- 
plication of  the  word  "void"  to  any  of 
an  infant's  contracts.  See  also  ante.  p. 
244,  note  (e). 


CH.  XVI.] 


INFANTS. 


*276 


SECTION  VII. 
WHO   MAY   TAKE   ADVANTAGE    OF   AN   INFANT'S    LIABILITY. 


It  is  a  general  rule  that  the  disability  of  infancy  is  the 
personal  privilege  of  the  infant  himself,  and  no  one  but 
*  himself  or  his  legal  representatives  can  take  advantage  of 
it.  (m)  Therefore  other  parties  who  contract  with  an  infant 
are  bound  by  it,  although  it  be  voidable  by  him.  Were  it 
otherwise  this  disability  might  be  of  no  advantage  to  him, 
but  the  reverse,  (n)  Thus,  an  infant  may  sue  an  adult  for  a 
breach  of  promise  of  marriage,  although  no  action  can  be 
brought  against  an  infant  for  that  cause,  (o)  And  an  infant 
may  bring  an  action  on  a  mercantile  contract,  though  none 
can  be  brought  against  him.  (p)     So  in  contracts  of  appren- 


(m)  Parker  v.  Baker,  1  Clarke's  Ch. 
136;  Gullett  r.  Lamberton,  1  Erig.  R. 
(Ark.)  109;  Rose  v.  Daniel,  3  Brev. 
438;  Voorhees  v.  Wait,  3  Green,  343. 
This  privilege  extends  to  the  infant's 
personal  representatives.  Smith  v. 
Mayo,  9  Mass.  62  ;  Jefford  v.  Ringgold, 
6  Ala.  .544  ;  Marten  v.  Maj'o,  10  Mass. 
137;  Hussey  v.  Jewett,  9*  Mass.  100; 
Jackson  v.  Mayo,  11  Mass.  147;  Par- 
sons V.  Hill,  8  Missouri,  135,  and  to  his 
privies  in  blood,  Bac.  Abr.  Infancy,  (I.) 
6 ;  Austin  ;;.  Charlestown  Female  Se- 
minary, 8  Met.  196.  But  not  to  his  as- 
signees, or  privies  in  estate  only.  Id. 
Whittingham's  case,  8  Co.  Rep.  43 ; 
Breckenridge's  Heirs  v.  Ormsby,  1  J.  J. 
Marsh.  236  ;  Hoyle  v.  Stowe,  2  Dev.  & 
Batt.  323.  Nor  to  a  guardian.  Oliver  v. 
Houdlet,  13  Mass.  237  ;  Irving  v.  Crock- 
ett, 4  Biiib,  437.  It  is  on  this  ground, 
connected  with  others,  that  parties  to 
negotiable  paper  cannot  take  advantage 
of  the  infancy  of  any  prior  party.  Jones 
V.  Darch,  4  Price,  300 ;  Grey  v.  Cooper, 
3  Doug.  65 ;  Nightingale  v.  "Withington, 
15  Mass.  272 ;  Taylor  v.  Croker,  4  Esp. 
187  ;  Dulty  v.  Brownfield,  1  Barr,  497. 
(n)  Boyden  v.  Boyden,  9  Met.  519, 
521.  Shaw,  C.  J.;  McGinn  v.  Shaeffer, 
7  "Watts,  412,  414. 

(o)  Hunt  V.  Peake,  5  Cow.  475  ;  Pool 
V.  Pratt,  1  D.  Chipman,  252;  Willard  v. 
Stone,  7  Cow.  22 ;  Holt  v.  Ward  Cla- 


rencieux,  2  Strange,  937.  And  the  in- 
fant may  sue  for  a  breach  of  such  pro- 
mise, without  averring  consent  of  his 
parent  or  guardian.  Cannon  v.  Als- 
bury,  1  A.  K.  Marsh.  76. 

(/?)  In  Warwick  v.  Bruce,  2  M.  &  S. 
205,  the  defendant,  on  the  12th  of  Oc- 
tober, agreed  to  sell  to  the  plaintiff,  a 
minor,  all  the  potatoes  then  growing  on 
three  acres  of  land,  at  so  much  per  acre, 
to  be  dug  up  and  carried  away  by 
plaintiff;  and  the  plaintiff  paid  ,£40  to 
the  defendant  under  the  agreement,  and 
dug  a  part,  and  carried  away  a  part  of 
those  dug,  but  was  prevented  by  the 
defendant  from  digging  and  carrying 
away  the  residue.  It  was  iield  that  the 
infant  was  entitled  to  recover  for  this 
breach  of  the  agreement.  Lord  Ellen- 
borough,  C.  J.  "It  occurred  to  me  at 
the  trial,  on  the  first  view  of  the  case, 
that  as  an  infant  could  not  trade,  and 
as  this  was  an  executory  contract,  he 
could  not  maintain  an  action  for  the 
breach  of  it;  but  if  I  had  adverted  to 
the  circumstance  of  its  being  in  part 
executed  by  the  infant,  for  he  had  paid 
£40,  and  therefore  it  was  most  imme- 
diately for  his  benefit  that  he  should  be 
enal)led  to  sue  upon  it,  otherwise  he 
might  lose  the  benefit  of  such  payment, 
I  should  probably  have  held  otherwise. 
And  I  certainly  was  under  a  mistake  in 
not  adverting  to  the  distinction  between 

[287] 


277  THE    LAW    OF    CONTRACTS.  [BOOK  I. 

ticeship,  or  in  cases  of  hiring  and  service.  ((/)  In  none  of 
these  cases  can  the  adult  discharge  himself  by  alleging  that 
there  was  no  consideration  for  his  promise,  on  the  ground 
that  the  promise  of  the  infant  did  not  bind  him.  The  mu- 
tuality or  reciprocity  of  the  contract  or  obligation  is  not  com- 
plete, but  it  is  sufficient  to  bind  the  party  of  adult  age  to  his 
part  of  the  contract.  But  if  a  person  of  adult  age  marry  one 
who  is  under  the  age  of  consent,  (in  males  fourteen,  and 
females  twelve  years,)  such  marriage  is  binding  upon  neither 
party ;  and  it  is  in  the  power  of  either  to  disagree  when  the 
infant  comes  to  the  age  of  consent,  though  not  before,  (r) 
But  we  shall  speak  of  this  more  fully  when  treating  of  the 
Contract  of  Marriage. 

SECTION  VIII. 

OF   THE   MAimiAGE   SETTLEMENTS   OF   AN   INFANT. 

The  power  of  an  infant  in  respect  to  marriage  settlements 
has  been  much  discussed.  It  seems  to  be  determined,  that  a 
marriage  settlement  upon  a  female  infant,  and  her  release  of 
dower  in  consideration  of  such  settlement,  are  valid,  (s)  But 
whether  she  can  bind  herself  by  a  settlement  of  her  own 
estate  in  contemplation  of  marriage,  seems  still  to  be  regard- 
ed as  an  open  question,  {t)  It  is  certain  that  a  female  infant 
may  marry ;  and  therefore  it  might  be  supposed  that  a  pru- 
dent settlement  of  her  property,  in  view  of  marriage,  would 

the  case  of  an  infant  plaintiff  oi-  defend-         {q)  Eubanks  v.  Peak,  2  Bailey,  497. 
ant.     If  the  defendant  had  been  the  in-         ,  ,  -r^        . ,      -r  ,.  ■,   a        /  »  , 

fant,  what  I  ruled  would  have  been  cor-  ('")  ^^"^^  ^^^-  1°^'^°^^  ''^"'^  ^S^'  (^O 
rect ;  but  here  the  i^laintiff  is  the  infant,        (^j  Dj-ury  v.  Drury,  2  Eden.  39 ;  Earl 

and  sues  upon  a  contract  partly  cxe-  of  Buckinghamshire  v.  Drury,  2  Eden, 

cuted  by  him,  which  it  is  clear  that  he  gO:  Wilmot's  Opinions,  p.  177;  McCar- 

may  do.     It  is  certainly  for  the  benefit  tee  r.  Teller  2  Paio-e  511. 
of  infants,  where  they  have  given  the  '  '  *  ' 

fair  value  for  any  article  of  produce,         (t)  Previous  to  Milner  v.  Harewood, 

that  they  should   have   the  thing  con-  18   Ves.   259,  the  weight   of  authority 

tracted   for.     And   it  is  not  necessary  seemed    to  be  in  favor  of  her   having 

that  they  should  wait  until  they  come  such   power.     See  Atherley's   Treatise 

of  age  in  order  to  bring  the  action.    A  on  Marriage  Settlements,  pp.  28  to  45. 

hundred  actions  have  been  brought  by  But  in  that  case  Lord  Eldon  held  that 

infants  for  breaches  of  promise  of  mar-  she  was  not  so  bound  by  such  convey- 

riage,  and  I  am  not  aware  that  this  ob-  ance  or  agreement   to  convey  as  that 

jection  has  ever  been  taken  since  the  she  might  not  avoid  it  on  coming  of 

case  in  Strange."  age. 

[288] 


CH.  XVI.]  INFANTS.  *278 

come  within  the  reason  of  the  rule  which  makes  valid  the 
contracts  of  an  infant  for  necessaries.  Of  course  such  a  set- 
tlement would  be  within  the  power  of  chancery,  for  correc- 
tion or  avoidance,  on  the  ground  of  fraud,  mistake,  or  undue 
influence,  and  any  injurious  effect  would  be  prevented.  And 
the  court  would  always  pay  due  regard  to  the  youth  and  im- 
*mature  judgment  of  the  infant  wife.  But  to  say  that  a 
young  woman  may  marry,  but,  because  she  is  an  infant,  can- 
not use  valid  precautions  to  secure  her  property  against 
waste,  and  for  her  own  benefit,  would  give  an  effect  to  her 
legal  incapacity  entirely  opposed  to  the  principle  that  the 
disability  of  an  infant  is  a  privilege  allowed  as  a  shield  and 
a  protection,  not  as  a  burden  and  an  injury.  It  has  therefore 
been  held  that  such  settlement  is,  at  all  events,  only  voidable, 
and  that  no  one  but  herself  can  avoid  it,  and  she  need  not;  but 
may  affirm  or  avoid  it  when  of  fall  age.  The  question  then 
occurs,  whether  she  can  so  disaffirm  it  after  majority,  if  still 
married ;  and  it  has  been  said  that  the  preponderance  of 
opinion  is  that  she  cannot,  (m)  So  whether  a  male  infant 
may  bind  himself  irrevocably  by  a  marriage  settlement  of  his 
own  estate  is  not  quite  certain,  (v)  It  is  not,  however,  easy 
to  find  any  very  good  reason  which  would  draw  a  distinction 
between  the  sexes  in  this  particular,  and  make  such  settlement 
by  a  male  infant  absolutely  binding,  and  leave  that  by  a 
female  voidable  by  her  at  her  majority.  But  we  consider 
this  whole  subject  open  for  further  adjudication. 


SECTION  IX. 

infant's  liability  with  respect  to  fixed  property 
acquired  by  his  contract. 

It  is  of  importance  to  know  how  the  ordinary  principles 
governing  the  contracts  of  infants  are  applied  to  the  case 

(«)  Temple  v.  Hawley,  1  Sandf.  Ch.  wife's   personal    property.    And   that 

153.  "  both  male  and  female  infants  can  settle 

(y)  In  Slocombe  v.  Glubb,  2  Bro.  C.  their  personal   estate   before  marriage, 

C.  545,  it  seems  to  be  the  doctrine  that  definitis-ely.     See   Strickland  v.  Coker, 

a  male  infant  may  bar  himself  by  cove-  2  Ch.  Cas.  211 ;  and  Warburton  v.  Lyt- 

nants  before  marriage  of  his  estate  by  ton,  cited  la  Lytton  v.  Lytton,  4  Bro. 

courtesy,  and  of  all  right  in  or  to  his  C.  C.  441. 

VOL.   I.  25  [289] 


279*  THE   LAW   OF   CONTRACTS.  [BOOK  I. 

where  an  interest  in  property,  of  a  fixed  and  permanent  na- 
ture, is  vested  in  an  infant  by  means  of  his  contract.  Are 
the  duties  attendant  upon  the  occupation  of  fixed  property 
separated  therefrom  when  the  occupier  is  within  the  privilege 
*  of  minority  ?  Where  the  interest  devolves  by  direct  opera- 
tion of  law,  (as  upon  marriage,  or  by  descent,)  it  is  clear 
that  the  duty  is  received  along  with  it  —  transit  terra  cum 
onere.  {to)  This  fundamental  maxim  thus  undergoes  no 
general  relaxation  in  favor  of  infants ;  its  operation  is  only 
affected,  if  at  all,  when  that  other  maxim,  that  an  infant's 
contract  shall  never  be  his  burden,  comes  in  conflict  with  it. 
The  question  arising  here  is  undoubtedly  one  of  no  little  diffi- 
culty ;  but  it  has  been  so  determined  as  to  reconcile  the  two 
principles  without  impairing  either  of  them.  It  is  held  that 
if  one  under  age  take  a  lease,  and  enter,  and  continue  in  pos- 
session after  claim  of  the  rent,  he,  like  any  other  person,  (and 
by  the  same  process  as  anj/  other  person,)  [x)  may  be  com- 
pelled to  pay  the  rent  he  has  contracted  to  pay.  [y)  Yet  he 
may,  if  be  choose,  disclaim  at  any  time,  and  thereby  exone- 
rate himself;  [z)  or,  at  least,  he  may  disclaim  at  any  time 
before  the  rent-day  comes,  and  have  relief  from  liability  for 
the  past  occupation,  [a)  No  necessity  obliges  him  to  put  ofi' 
his  disclaimer  until  his  majority  ;  for  it  is  common  learning 
that  an  infant  may  avoid  matters  in  fait,  either  within  age, 
or  at  full  age,  (h)  but  matters  of  record  (for  the  reason  that 
when  such  come  in  question,  his  nonage  is  to  be  ascertained 
by  inspection  of  the  court,  and  not  by  the  country,)  must  be 
avoided  during  his  minority,  and  not  afterwards.  Yet  when 
it  is  said  he  may  avoid  during  minority,  what  is  to  be  under- 
stood is  rather  a  suspension  than  an  avoidance,  —  an  avoid- 
ance, as  it  were,  only  de  bene  esse.  Upon  arriving  at  full  age 
he  may  disaffirm  that  disaffirmance,  and  revive  the  original 


[ic)  Leeds     &     Thirsk    Eailway    v.  ley's  case.  Brownl.  120;  S.  C,  under 

Pearnley,   4   Excli.  26.  various  names,  Cro.  Jac.  320,  2  Bulst. 

{x)  Per  Farke,  B.,  Newry  &  Ennis-  69,  Rol.  Abr.  Enfixnts,  K. 

killen    Railway  v.    Coombe,  3   Exch.  \z)  North- Western  Eailway  v.    Mc- 

569.                  '  Michael,  5  Exch.  125. 

(y)  Neicton,   C  J.,  Bottiller  v.  New-  (a)  Ketsey's  case,  Cro.  Jac.  320;  1 

port,  21  H.  6,31  B.,  cited  aud  approved  Piatt  on  Leases,  52S,  529. 

by  Parke,  B.,  in  North- AVestern  Kail-  (b)  Co.  Litt.  380  b;  Bac.  Abr.  In- 

way  V.  McMichaol,  5  Exch.  126  ;  Ket-  fancy  and  Age,  (I.)  5. 

[290] 


CH.  XVI.]  INFANTS.  *  280 

contract,  (c)  In  this  case  the  debt  incurred  by  *his  former 
occupation  under  the  lease,  and  the  recovery  of  which  he  had 
prevented  by  disavowing,  also  revives.  Where  an  interest 
vests  in  the  infant,  (as  it  appears  it  does  in  all  cases  where 
he  accepts  a  lease  or  other  conveyance  of  land,  or  an  assign- 
ment of  a  share  in  permanent  stock,)  no  express  ratification 
on  coming  of  age  is  requisite.  The  interest,  being  vested, 
continues  until  devested  by  repudiation,  which  may  be  by 
parol;  and  his  acquiescence  after  majority  will  be  taken,  after 
a  reasonable  time,  as  a  waiver  of  his  right  to  disclaim,  and 
an  adoption,  at  mature  age,  of  the  act  of  his  infancy,  (d)  It 
seems  (though  the  point  is  still  unsettled,)  that  the  fact  that 
the  rent  reserved  upon  a  lease  made  to  an  infant  is  greater 
than  the  land  is  worth,  in  no  respect  alters  the  case  ;  although 
the  contract  is  now  manifestly  an  injurious  one.  (e) 

Even  if  shares  in  a  railway  corporation,  or  other  Public 
Company  holding  land,  are  personal  property,  (/)  the  hold- 
ers of  such  shares,  since  they  acquire  a  vested  interest  of  a 
permanent  nature,  fill  a  position  analogous  in  this  respect  to 
that  of  occupiers  of  real  estate  ;  and  the  infant  purchaser  of 
a  share  in  such  a  corporation  incurs  a  liability  similar  to  that 
of  an  infant  lessee,  (g-)     Thus  the  simple  plea  of  infancy  is 


(c)  North- Western    Railwaj'  v.  Mc-  Eaton,  10  Now  Hamp.  562.    Holmes  v. 
Michael,  5  Exch.  114,  127  ;  with  which  Blogg,  8  Taunt.  39,  40,  per  Dallas,  J. 
compare  Newry&Enniskillen  Railway         ^^^  North-Western    Railway  v.   Mc- 
«Coombe,  3  Exch.  5.2,570   5.8.     In  Michael,  5  Exch.  114. 

the  former  case  the  law  is  thus  sura-  ^ 

marily  stated  in  the  judgment  of  the         (/)  I^Jig^i  ^'-  Brent,  2  1 .  &  Coll.  268; 

court:  — "It   seems   to   us   to   be   the  Bradley  ?;.  Holdsworth,  3  M.  &  W.  422, 

sounder  principle,   that,  as   the  estate  424. 

vests,  as  it  certainly  does,  the  burden         {(/)  In  Newry  &  Enniskillea  Railway 

upon  it  must  continue  to  be  obligatory  v.    Coombe,  3   Exch.    577,  where   the 

until  a  waiver  or  disagreement  by  the  point  was  discussed,  Rolfe,  B.,  indeed, 

infant  takes  place,  which,  if  made  after  said  :  —  "I  must  say  I  doubt  whether 

full  age,  avoids  the  estate   altogether,  the  doctrine  as  to  a  lease  granted  to  an 

and  revests  it  in  the  party  from  whom  infant  who   enjoys    the    land    demised 

the  infant  purchased ;   if  made  within  v.ould  apply  here,  because  this  liability 

age,  suspends  it  only,  because  such  dis-  rests  entirely  in  contract,  and  there  is 

agreement  may  be  again  recalled  when  no  possession  of  any  thing ;  all  tliat  the 

the  inf;vnt  attains  his  majority."  —  Sec  party  gets  is  a  ri;jht  to  a  portion  of  the 

Bool  V.  Mix,  17  Wend.  119,  132,  per  profits   of  the   undertaking.''     But  see 

Branson,  J.  Leeds  &  Thirsk  Railway  i'.  Fcarnlcy, 

(d)  Bac.  Abr.  Infancy  and  Age,  (I.)  4  Exch.  26,  and  especially  the  judgment 
8;  Com.  Dig.  Enfants,  (C.  6) ;  Evelyn  of  the  court  as  given  by  Baron  I'arke 
);.  Cinchester,  3  Burr.  1717;  Lawson  r.  in  North-Western  Railway  v.  McMi- 
Lovejoy,   8    Greenl.   405  ;    Robbins   v.  chad,  5  Exch.  123. 

[291] 


281* 


THE   LAW   OF    CONTRACTS. 


[book  I. 


no  defence  to  an  action  for  calls,  (h)  What  limits  arc  to  be 
*  set  to  the  analogy  is  undetermined.  It  cannot  be  said  that 
the  cases  which  have  as  yet  been  adjudicated  arc  authority 
for  extending  it  to  other  than  stock  based,  like  railway  stock, 
in  some  measure  upon  the  possession  of  land. 

There  is  no  principle  of  law  (though  such  has  sometimes 
been  supposed  to  exist,)  placing  infants  on  the  same  footing 
as  other  persons  whenever  they  enter  into  contracts  which 
owe  their  validity,  and  the  <means  of  their  enforcement,  to 
statutes.  In  all  statutes  containing  general  words  there  is 
an  implied,  or  virtual,  exception  in  favor  of  persons  whose 
disability  the  common  law  recognizes,  (f)  Thus  where  a 
company  is  incorporated  by  statute,  and  by  a  general  clause 
all  shareholders  are  subjected  to  certain  liabilities,  and  en- 
joined certain  duties ;  here  the  same  abatement  of  the  rigor 
of  the  provision  is  to  be  made  with  regard  to  infants,  luna- 
tics, and  feme  coverts,  which  the  common  law  would  make 
in  applying  a  common-law  rule,  (j)  The  case  of  an  infant 
whose  interest  in  his  land  or  stock  is  acquired  by  marriage 
or  descent  is   (as  we  have  seen,)  quite  different ;  for  his  lia- 


{h)  Birkenhead,  Lancashire,  &  Che- 
shire Railway  v.  Pilcher,  5  Exch.  121. 

(i)  Stowel  V.  Zouch,  Plowd.  364. 

[j)  In  the  Corls  &  Bandon  Railway 
V.  Cazenove,  10  Q.  B.  935,  two  of  the 
judges,  Lord  Denman  and  Pattesnn,  J., 
expressed  the  opinion  that  since  by  the 
statute  a  shareholder  was  liable  to  the 
company  for  calls  in  his  character  of 
shareholder,  the  fact  of  infancy  made  no 
difference.  The  Court  of  Exchequer, 
which  had  previously  refused  assent  to 
this  doctrine,  (see  Newry  Kailway  v. 
Coombe,  3  Exch.  565,  and  Leeds  Rail- 
way V.  Fearnley,  4  Exch.  26,  32,)  thus 
observed  upon  it  in  the  North- Western 
Railway  ik  McMichael,  5  Exch.  124: 
"  We  cannot  say  that  we  concur  in  the 
opinion  of  the  Court  of  Queen's  Bench, 
as  reported  in  11  Jur.  802,  and  10  Q. 
B.  935,  if  it  goes  to  the  full  extent  that 
all  shareholders,  including  infants,  are 
by  the  operation  of  the  Railway  Acts 
made  absolutely  liable  to  pay  calls.  No 
doubt  tiie  statute  not  only  gave  a  more 
easy  remedy  against  the  holder  of 
shares  by  original  contract  "with  the 
companj''.  for  calls,  and  also   attached 

[292] 


the  liability  to  pay  calls  to  the  shares, 
so  as  to  bind  all  subsequent  liolders ; 
but  we  consider,  as  we  have  before  said, 
that  there  are  implied  exceptions  in 
favor  of  infants  and  lunatics  in  statutes 
containing  general  words,  (Stowel  v. 
Lord  Zouch,  Plowd.  364.)  thoujih  that 
depends,  of  course,  on  the  intent  of  the 
legislature  in  each  case,  (see  "Wilmot's 
Notes  of  Opinions  and  Judgments,  p. 
194,  The  Earl  of  Buckinghamshire  v. 
Drury,)  and  that  this  statute  did  not 
mean,  by  general  words,  to  deprive  in- 
fants of  the  protection  Avhich  the  law 
gave  them  against  improvident  bar- 
gains. Under  this  statute,  therefore, 
our  opinion  is,  that  an  infant  is  not  ab- 
solutely bound,  but  is  in  the  same  situ- 
ation as  an  infant  acquiring  real  estate, 
or  any  other  permanent  interest:  he  is 
not  deprived  of  the  right  which  the  law 
gives  every  infant,  of  waiving  and  dis- 
agreeing to  a  purchase  wliich  he  has 
made ;  and  if  he  waives  it,  the  estate 
acquired  by  the  purchase  is  at  an  end, 
and  with  it  his  liability  to  pay  calls, 
though  the  avoidance  may  not  have 
taken  place  till  the  call  was  due." 


CH.  XVI.]  INFANTS.  *282 

bility  is  cast  upon  him  by  direct  operation  of  law.  (k)  So 
*  where  a  minor  is  held  to  service  in  the  navy  by  force  of  a 
statute  ;  (Z)  it  is  not  the  contract  of  enlistment  which  binds 
him,  but  the  statutory  duti/.  In  all  cases,  "  the  only  criterion 
is  whether  the  liability  is  derived  from  contract."  (m)  If  it 
be  derived  from  contract  the  common-law  exceptions  apply 
to  it ;  otherwise,  not. 

Respecting  the  manner  of  pleading  the  defence  of  infancy 
in  cases  where  a  liability  is  charged  on  account  of  the  occu- 
pation of  land,  or  the  possession  of  stock,  and  of  replying  to 
that  defence,  the  following  conclusions  may  be  drawn  from 
recent  decisions  in  England.  First,  Where  a  primd  facie 
liability  appears  in  consequence  of  such  holding  of  land  or 
stock,  the  simple  plea  of  infancy  is  not  sufficient;  the  defend- 
ant must  also  aver  that  the  interest  on  account  of  which  he 
is  charged  came  to  him  by  contract  and  that  he  has  disaffirm,' 
ed  that  contract,  [n)  and  if  the  disaffirmance  be  after  he 
arrived  of  age  he  must  aver  that  it  was  within  a  reasonable 
time  after  becoming  of  age.  [nn)  Second,  If  upon  the  sim- 
ple plea  of  infancy  being  put  in,  the  plaintiff  take  issue  there- 
on, and  the  defendant  obtain  a  verdict,  the  plaintiff  is  entitled 
to  judgment  non  obstante  veredicto,  (o)  Third,  Where  in- 
fancy, the  contract,  and  the  disaffirmance,  are  all  pleaded,  it 
is  a  good  bar  ;  and  if  the  defendant  has,  upon  coming  of  age, 
reaffirmed  the  contract,  it  is  for  the  plaintiff  to  allege  this  fact 
in  his  replication,  (p)  Fourth,  Supposing  the  law  to  be 
(which,  however,  it  seems  it  is  not,)  that  an  infant  occupying 
under  a  lease,  wherein  exorbitant  rent  is  reserved,  may  defend 
against  the  recovery  of  such  rent,  ivitkout  giving'  iip  posses- 
sion, his  plea,  in  addition  to  the  other  requisites,  must  dis- 
tinctly show  that  at  the  time  of  pleading  it  he  is  still  a 
minor,  [q) 

{h)  Parke,^.,  Newry  &  Ennisldllcn  Railway  u.  Cazenove,  10  Q.  B.  935,  11 

Railway  v.    Coombe,    3    Exch.    574  ;  Jur.  802. 

Leeds  &  Tfiirsk  Railway  v.  Fearnley,  4  {nn)  Dublin  &  Wiclclow Railway  Co. 

Exch.  26.  V.  Black,  16  E.  L.  &  E.  556. 

(I)  See  United  States  v.  Bainbridge,  (o)  Birkenhead,  Lancashire,  &  Che- 

1  Mason,  71.  shire  Railway  v.  I'ilcher.  5  Exch.  121. 

(m)  Parke,  B.,  Nowry  &  Enniskillen  (;))  The  Newry  &  Enniskillen  Rail- 
Railway  V.  Coombe,  3  Exch.  569.  way  v.  Coombe,  3  Exch.  565. 

(n)  Leeds    and   Thirsk   Railway  v.  (q)  North-Western   Railway  v.  Mc- 

Fearnley,  4  Exch.  26  ;  Cork  &  Bandon  Michael,  5  Exch.  128. 

25*  [293] 


283  THE  LAW  OF  CONTRACTS.         [BOOK  I. 


CHAPTER  XVII. 

OP  THE   CONTRACTS   OP   MARRIED   WOMEN. 

Sect.  I.  —  Of  the  General  Effect  of  Marriage  on  the  Rights 
of  the  Parlies. 

At  common  law  the  disability  of  a  married  woman  is 
almost  entire.  Her  personal  existence  is  merged  for  most 
purposes  in  that  of  her  husband.  This  was  not  so  among 
the  Anglo-Saxons,  nor  with  the  earlier  Teutonic  races  ;  and 
must  be  explained  as  one  of  the  effects  of  the  feudal  system. 
It  was  a  principal  object  of  that  system  to  make  the  whole 
strength  of  the  state  available  as  a  military  force ;  and  to 
this  purpose  was  sacrificed  much  of  the  consideration  and 
respect  which  had  been  formerly  paid  by  the  German  tribes 
to  woman  and  her  rights  of  property,  and  which  had  distin- 
guished these  tribes  from  the  nations  of  Rome,  Greece,  and 
the  East.  As  the  married  woman  could  not  be  a  soldier,  she 
was  permitted  to  have  but  imperfect  and  qualified  rights  of 
property,  because  property  was  then  bound  to  the  state,  and 
made  the  means  of  supplying  it  with  an  armed  force.  It 
is  possible  that  the  Teutonic  respect  for  woman  was  inten- 
sified into  the  extravagance  of  chivalry,  as  a  kind  of  compen- 
sation. All  was  done  for  her  that  could  be  done,  in  manners 
and  in  social  usages ;  because  in  law,  and  in  reference  to 
rights  of  property,  so  little  was  allowed.  Dower  was  care- 
fully secured  to  her;  but  the  exercise  of  her  own  freewill 
over  her  property  was  forbidden.  But  the  influence  of  the 
feudal  system  is  broken  ;  very  much  in  England,  and  far 
more  here.  And  among  the  effects  of  this  decay  of  a  system 
in  which  many  of  the  principles  and  forms  of  our  law  origin- 
ated, we  count  the  changes  which  have  been  made  and  are 
now  making  in  the  law  which  defines  the  position  and  the 

[294] 


CH.   XVTI.]  MARRIED   -WOMEN.  284 

rights  of  the  married  woman.  This  law  is  in  fact,  at  this 
moment,  in  a  transition  state  in  this  country.  It  seems  to 
be  everywhere  conceded  that  the  old  rules  were  oppressive 
and  unjust,  and  certainly  not  in  conformity  with  the  existing 
temper  or  condition  of  society.  Almost  everywhere  changes 
are  made,  or  attempted  ;  and  the  necessity  of  change  is  not 
denied.  But  in  some  parts  of  our  country  the  slow  and  gra- 
dual progress  of  these  changes  indicates  a  belief  that  there  is 
much  need  of  caution,  in  order  to  improve  and  liberalize  the 
marital  relation,  without  inflicting  upon  it  great  injury.  We 
know  that  in  those  States  in  which  the  greatest  changes 
have  been  made,  and  still  greater  are  desired  by  some  per- 
sons, there  are  those  who  think  mischief  has  already  been 
caused,  and  that  a  brief  experience  will  prove  the  inconve- 
nience and  danger  of  permitting  husband  and  wife  to  pos- 
sess interests  and  properties  and  powers,  altogether,  or  in  a 
great  degree,  independent  and  equal.  The  tendency  of  this 
would  seem  to  be,  necessarily,  to  make  them  bargainers  with 
each  other;  and  as  watchful  against  each  other,  as  careful 
for  good  security,  as  strict  in  making  terms,  and  in  com- 
pelling an  exact  performance  of  promises  or  conditions,  and 
as  prompt  to  seek  in  litigation  a  remedy  for  supposed  wrong, 
as  seller  and  buyer,  lender  and  borrower,  usually  are ;  and  as 
these  parties  may  be,  more  properly  and  safely,  than  husband 
and  wife. 

We  will  first  consider  the  effect  of  marriage  upon  the  con- 
tracts made  by  the  woman  before  her  marriage,  and  then  her 
contracts  made  after  marriage. 


SECTION  II. 

OP  THE   CONTRACTS   OF  A   MARRIED   WOMAN  MADE   BEFORE 
MARRIAGE. 

The  contract  of  a  married  woman  made  before  her  mar- 
riage enures  to  the  benefit  of  her  husband  ;  but  does  not  vest 
in  him  absolutely.     It  is  a  chose  in  action,  which  he  may 

[295] 


285' 


THE   LAW   OF   CONTRACTS. 


[book  I. 


reduce  to  his  own  possession  during  her  life.  If  he  does  not 
*so  reduce  it  to  his  possession,  and  dies,  she  surviving  him,  it 
becomes  again  absolutely  hers,  (r)  If  she  dies  before  he  has 
reduced  it  to  possession,  he  surviving,  he  may  enforce  the 
contract  as  her  administrator,  for  his  own  benefit,  {s)  And 
it  has  been  said  that  if  he  gets  possession  of  her  choses  in 
action  after  her  death,  without  suit,  they  are  his,  by  a  title 
as  perfect  as  if  he  had  received  letters  of  administration,  (l) 
And  if  administration  be  necessary,  and  the  husband  dies 
before  having  letters  of  administration,  tile  right  to  take  them 
goes  to  his  personal  representatives ;  and  if  another  party 
becomes  administrator,  he  will  be  regarded  as  a  trustee  for 
the  husband  or  his  personal  representatives,  (w)  Pie  may 
reduce  such  chose  in  action  to  his  possession  by  receiving 
the  money  or  other  benefit  due  from  it,  or  by  a  new  contract, 
with  the  debtor  in  substitution  for  the  wife's  chose  in  action, 
or  by  recovering  a  judgment  on  the  contract,  (v)  Generally, 
in  all  cases  where  the  right  of  action  would  survive  to  the 


(r)  Co.  Litt.  351,  b;  Obrian  v.  Ram, 
3  Mod,  186;  Estate  of  Kintzinger,  2 
Ashmead,  455  ;  Legg  v.  Legg,  8  Mass. 
99  ;  Glasgow  v.  Sands,  3  Gill  &  Johns. 
96;  Stephens  v.  Beal,  4  Georgia,  319; 
Killcrease  v.  Killcreasc,  7  How.  (Miss.) 
311;  Rogers  v.  Bumpass,  4  Ired.  Eq. 
385;  Sayre  v.  Flonrnoy,  3  Kelly,  541. 

(s)  1  Rol.  Abr.  910;  Elliot's,-.  Col- 
lier, 3  Atk.  526,  1  Ves.  Sen.  15,  1  Wils. 
168;  Donnington  v.  Mitchell,  1  Green's 
Ch.  243.  He  holds  the  proceeds,  how- 
ever, as  assets  for  the  payment  of  her 
debts  contracted  before  marriage.  — 
Heard  v.  Stamford,  3  P.  Wins.  409; 
Cas.  temp.  Talbot,  173;  2  Kent,  Com. 
135  ;  Blenncrhassett  v.  Monsell,  19  Law 
Times  Rep.  36. 

(<)  Whitaker  v.  Whitaker,  6  Johns. 
112.  We  cannot  but  entertain  some 
doubts  of  this.  But  see  Lowry  v.  Hous- 
ton, 3  How.  (Miss.)  394 ;  Scott  v.  James, 
3  Id.  307  ;  Wade  v.  Grimes,  7  Id.  425. 

(u)  And  so  if  her  husband  having  been 
appointed  administrator,  die  before  the 
estate  is  all  administered,  his  executor 
or  administrator  is  entitled  to  be  admi- 
nistrator de  bonis  non,  in  preference  to 
her  next  of  kin.  Donuington  v.  Mit- 
chell, 1  Green,  Ch.  R.  243 ;  Hendreu  v. 
Colgin,  4  Munf.  231. 


{v)  It  seems  that  any  act  on  the  part 
of  the  husband,  which  clearly  shows  an 
intention  to  make  the  wife's  chose  in 
action  his  own,  as  mortgaging,  releas- 
ing, taking  a  new  security,  procuring  a 
judgment  on  it,  appointing  another  as 
agent  to  collect  the  money,  who  actually 
collects  it,  &c.,  is  a  sufficient  reduction 
to  possession,  and  bars  the  wife's  right 
of  survivorship.  But  mere  receipt  of 
interest  on  the  wife's  chose  in  action  is 
not  a  reduction  to  possession.  Hart  v. 
Stephens,  6  Q.  B.  937.  Nor  is  the 
mere  fact  that  he  joined  v/ith  her,  in 
giving  a  receipt  for  the  principal,  suffi- 
cient evidence  of  a  reduction  to  posses- 
sion by  the  husband.  Timbers  v.  Katz, 
6  Watts  &  Serg.  290.  As  to  the  ques- 
tion whether  an  assignment  of  a  wife's 
chose  in  action  oj^erates  as  a  reduction 
into  possession  so  as  to  bar  her  right  of 
survivorship,  see  2  Kent,  Com.  138,  and 
notes.  A  note  given  to  a  wife  during 
coverture  is  a  chose  in  action,  which 
the  husband  must  reduce  to  possession, 
and  not  a  personal  chattel  which  vests 
absolutelv  in  him.  Gaters  v.  Madelev, 
6  M.  & 'W.  423;  Hart  v.  Stephens, 's 
Q.  B.  937 ;  Scarpellini  v.  Atcheson,  7 
Q.  B.  864. 


[296] 


CH.  XVII.]  MARRIED   WOMEN.  286 

wife,  the  husband  and  wife  must  join  in  an  action  there- 
for, (iv) 


SECTION  III. 

OF   THE   CONTRACT    OF  A  MARRIED    WOMAN   MADE   DURING   THE 

MARRIAGE. 

By  the  rules  of  the  common  law,  a  married  woman  has  no 
power  to  bind  herself  by  contract,  or  to  acquire  to  herself  and 
for  her  exclusive  benefit  any  right,  by  a  contract  made  with 
her.  If  she  receive  money  or  property  by  gift  to  herself  or  in 
payment  for  her  services,  and  lend  it,  her  husband  and  not 
she  has  the  right  to  recover  it ;  and  so  if  she  sell  any  thing, 
her  husband  has  the  right  to  recover  the  price.  He  may 
claim  the  earnings  of  her  personal  labor,  and  only  where  she 
alone  is  the  meritorious  cause  of  the  debt  due  can  she  be 
joined  in  an  action  for  it.  In  general,  whatever  she  earns 
she  earns  as  his  servant,  and  for  him ;  for  in  law,  her  time 
and  her  labor,  as  well  as  her  money,  are  his  property,  (x) 

If  A.  enters  into  a  contract  with  the  wife  of  B.,  not  know- 
ing her  marriage,  and  she  having  no  authority  to  bind  B., 
and  not  professing  to  act  for  him,  the  wife  is  not  bound, 
neither  is  B.  liable  upon  such  contract.  (?/)     But  whether  B., 

(w)  Morse  v.   Earl,  13  Wend.  271  ;  Brown,  23  Maine,  305.    In  Messenger 

Ramsay  v.  George,  1  M.  &  S.  176 ;  Hoy  v.  Clark,  5  Exch.  388,  it  was  held  that 

V.  Kogers,   4    Monroe,   225 ;  Milner  v.  a  husbiind   is   entitled   to    the   money 

Milnes,  3  T.  R.  631.  which  his  wife  saves  out  of  a  weekly  al- 

(x)  See  Legg  v.  Legg,  8  Mass.  99 ;  lowance  given  by  him  for  her  support, 

Howes  I!.  Bigelow,  13  Mass.384:  Wins-  they  living  separate  by  agreement.     It 

low  V.  Crocker,  17  Maine,  29  ;  Hoskins  should  be  noted,  however,  that  Ro/fe,  B., 

V.  Miller,  2  l)ev.  360  ;  Hyde  v.  Stone,  puts  the  case  on  the  ground  that  the 

9  Cow.  230  ;  Morgan  v-  Thames  Bank,  wife  had  invested  her  savings  in  stock, 

14  Conn.  99  ;  Matter  of  Grant,  2  Story,  (which  stock  she  afterwards  sold  and 

312;  Hawkins  c.  Craig,  6  Monroe,  257.  gave  away  the  proceeds.)  and  he  held 

And  notwithstanding  the  husband  lives  that  although  the  money  might   have 

apart  from  ids  wife,  and  in  a  state  of  been  hers  to  dispose  of  as  she  pleased, 

continued  adultery,  his  right  to  her  per-  yet  when  she  bought  a  specific  chattel 

sonal  property  is  still  the  same,  so  long  witii  a  part  of  it,  tiiat  chattel  became 

as  the  relation  of  husband  and  wife  con-  tlie  husband's. 

tinues.     Russell  v.  Brooks,  7  Pick.  65  ;         (_y)  In  Smith  v.  Plomer,  15  East,  607, 

Turtle  V.  Muncy,  2  J.  J.  Marsh.  82 ;  in-  it  was  held  that  a  tradesman  supplying 

eluding  her  earnings  both  before  and  a  married  Avoman  living  apart  from  her 

after  marriage.     Glover  v.  Proprietors  husband  with  furniture  upon  hire,  does 

of  Drury  Lane,  2  Chitty,  117;  Wash-  not  thereby  divest  himself  of  the  pre- 

buru  V.  Hale,  10  Pick.  429  ;  Prescott  v.  sent  right  of  property  ia  such  goods, 

[297] 


287 


THE   LAAV   OF   CONTRACTS. 


[book  I. 


who  may  certainly  repudiate  the  contract,  can  elect  to  adopt 
it,  and  enforce  it  as  his  own  against  A.,  may  well  be  doubted. 
Upon  principle  we  should  say  he  could  not,  because  there  is 
a  total  want  of  reciprocity  or  mutuality.  We  may  add  that 
such  a  "case  would  perhaps  fall  within  the  rule,  that  no  act  is 
capable  of  ratification  by  the  principal  which  was  not  per- 
formed by  the  agent  as  agent,  and  in  behalf  of  the  princi- 
pal.  {z) 

The  wife  may  be  the  agent  of  the  husband,  and  in  that 
character  make  contracts  which  bind  him ;  and  this  agency 
need  not  be  expressed,  but  is  raised  by  the  law  from  a  variety 
of  circumstances.  Thus,  the  purpose  and  comfort  of  married 
and  domestic  life  would  be  defeated  or  obstructed  if  the  wife 
had  not  a  general  authority  to  hire  servants,  or  to  purchase 


inasmuch  as  the  married  woman  was 
incapable  of  acquiring  it  by  any  con- 
tract ;  and  therefore  if  the  sheriff  take 
such  goods  in  execution,  at  the  suit  of 
the  husband's  creditor,  trover  lies  by  the 
tradesman.  But  if  the  contract  had 
been  valid,  the  goods  being  let  to  hire 
generally,  without  any  time  limited, 
notice  to  determine  the  contract  given 
to  the  sheriff's  officer,  and  not  to  the 
other  contracting  party,  would  not  be 
sufficient  to  determine  the  contract. 
Lord  Elkiiborouffh,  C.  J.  "  This  case  has 
been  presented  during  parts  of  the  argu- 
ment in  different  points  of  view  from 
what  it  appeared  in  at  the  trial.  In 
order  to  maintain  trover,  the  plaintiff 
must  have  a  pi'esent  right  of  property  in 
the  goods ;  the  first  question,  therefore 
is,  whether  the  plaintiff  had  put  the 
right  of  property  out  of  him  by  a  valid 
contract  for  the  hire  of  the  goods  with 
Mrs.  East  1  If  the  contract  were  for  a 
year  it  would  put  the  property  out  of 
iiim  for  that  time ;  or  if  according  to 
Mrs.  East's  evidence,  the  hiring  were 
only  general,  without  determining  either 
price  or  time,  it  would  operate  as  a  con- 
tract, for  a  reasonable  price,  so  long  as 
both  parties  pleased  ;  and  still  the  pro- 
perty would  be  out  of  him  for  the  time, 
if  it  were  a  valid  contract.  That  brings 
it  to  the  question  whether  Mrs.  East, 
being  a  married  woman,  could  make  a 
valid  contract  for  the  hire  of  the  plain- 
tiff's goods.  Now  a  contract  to  be  va- 
lid must   bind   both  parties ;    but   she 

[298] 


being  married,  it  could  not  bind  her. 
It  is  said,  however,  that  it  would  bind 
her  husband,  being  for  necessaries  for 
her  use  ;  but  I  know  of  no  case  where  a 
husband  has  been  held  liable  upon  a 
contract  of  this  sort  made  by  his  wife 
living  apart  from  him,  as  for  necessa- 
ries ;  and  no  such  case  was  made  be- 
fore the  jury.  Then  has  he  confirmed 
the  contract "?  There  is  no  such  evi- 
dence. The  case,  therefore,  stands 
upon  her  own  contract  unconfirmed, 
which  is  liable  to  the  infirmity  of  her 
being  a  married  woman.  It  was  argued, 
on  the  other  hand,  that  supposing  the 
contract  was  good,  the  notice  given  by 
the  plaintiff  to  the  sheriff's  officer  would 
have  determined  it ;  hut  to  that  I  can- 
not accede  ;  for  to  determine  a  contract, 
which  is  determinable  upon  notice,  the 
notice  should  be  brought  home  to  the 
other  contracting  party ;  and  it  is  not 
enough  that  it  siiould  be  given  to  one 
acting  adversely  under  some  supposed 
derivative  title  in  the  la.w  from  that 
party.  The  notice,  therefore,  wliicli  was 
given  to  the  sheriff's  officer,  would  not 
alter  the  case.  The  conclusion  is,  that 
this  action  lies,  because  the  I'hiintift'had 
the  present  right  of  property  in  him  at 
the  time,  inasmuch  as  the  married  wo- 
man, to  whom  he  sent  the  goods,  was 
not  capable  of  contracting  with  him  for 
the  hire,  so  as  to  take  the  property  out 
of  him." 

(r)    See  "Agents"  ante:    Sec.  III., 
note,  (tt) 


CE.   XVII.]  MARRIED    WOMEN-  288 

such  articles  as  are  necessary  for  the  use  of  the  family ;  and 
the  necessity  is  not  to  be  a  strict  one,  but  includes  whatever 
things  are  unquestionably  proper  to  be  used  in  the  family,  and 
suited  to  the  manner  of  life  which  the  husband  authorizes  ;  and 
this  even  after  her  adultery,  if  they  have  not  separated,  (a) 
And  therefore  the  law  clothes  her  with  this  authority,  (b) 
So,  whatever  she  purchases  for  herself,  the  husband  is  liable 
for,  provided  it  be  such  in  quality,  and  no  more  in  quantity, 
than  is  suitable  for  the  station  and  means  of  the  husband, 
and  the  manner  in  which  he  permits  her  to  live.  But  beyond 
this  she  has  no  such  authority ;  her  contracts  for  other  things 
are  wholly  void.  Thus,  an  agreement  by  a  wife  for  the 
sale  of  her  real  estate,  with  the  assent  of  her  husband,  and 
for  a  valuable  consideration,  is  said  to  be  void  in  law ;  and 
equity  has  refused  to  enforce  it.  (c) 

In  every  case  it  is  a  question  for  the  jury,  under  the  instruc- 
tion of  the  court,  whether  articles  supplied  to  the  wife,  and  for 
which  it  is  sought  to  make  the  husband  liable  on  his  implied 
authority  to  her,  are  or  are  not  necessaries  in  this  sense,  [d)  and 
the  husband  may  show  that  the  articles  are  not  necessaries 
by  proof  that  the  wife  had  previously  sufficiently  supplied 
herself  elsewhere.  (<:M) 

An  important  fact  may  be,  the  possession  by  the  wife  of  a 
separate  income  or  other  distinct  means  of  her  own ;  and  it 

(a)  Eobinson   v.   Greinold,    1    Salk.  innkeeper's  wife  has  no  authovitj- during 

119,  6  ]\Iod.  171  ;  Bac.  Abr,  Bar.  &  F.  her  husband's  absence  to  board  or  lodge 

(H.)  his  guests  at  less  than  tlie  usual  rates. 

(6y  The  wife  is  prund  facie  the  hus-  Webster  r.  McGinnis,  5  Binn.  235.  And 
band's  agent  in  managing  the  affairs  of  the  wife  cannot  appear  and  manage  a 
his  household.  Pickering  v.  Pickering,  cause  at  nisi  priiis  for  her  husband,  al- 
6  New  Ilamp.  124  ;  Mackinley  v.  Mc-  though  he  is  at  the  time  in  custody  and 
Gregor,  3  Whart.  369  ;  Felker  v.  Emer-  cannot  appear  himself.  Cobbett  v.  Hud- 
son, 16  Verm.  653.  But  not  to  lend  his  son,  10  E.  L.  &  E.  318. 
property.     Green  v.  Sperry,  16  Verm.  r^^  j^r^^^  j._  McKeen,  15  Maine,  304. 

390,  although  where  the  husband  was         ,,>-,-,,.  -r.  r^  ■,,     

absent  horn  home,  and  she  let  out  for  ij)  Ethcnngton  v^PaiTOt,  Salk   118; 

hire  her  husband's  horses,  it  was   pre-  McCutchen  v.    McGahay,    11    Johns, 

sumcd    she   had   authority   so   to    do.  f^l  ;  Clifford  t;.  Laton    3  C.  &  P.  1 5 ; 

Church  V.  Landers,  10  Wend.  79.    But  Holt  v.  Brien  4  B.  &  Aid.  252;  Seaton 

whether   the   husband    is   at  home   or  ^  Benedict    5  Bing.  28;  Montague  v. 

abroad,  the  wife  is  not  presumed  to  be  Espinasse,  1  C.  4c  P.  356j  Spreadbury 

his  agent  qeneraU>i,  or  to  be  intrusted  ^  Chapman,  8  O.  &;  1.  3/1;  Atluns  v. 

with   any    other    authority  than   it   is  ^^"^'O?*^',^  C.  &  P.7o6;  Wa.thman  v. 

usual  and  customary  to  confer  upon  the  Wakefield,  1    Camp.    120  ;  Furlong  v. 

wife.     Benjamin  v.  Benjamin,  15  Conn.  Hysom,  35  Mamc,  333. 

347  ;  Sawyer  v.  Cutting,  23  Verm.  486  ;  {dd)  Renaux  v.  Tcakle,  20  E.  L.  & 

Leeds  v.  Vail,  15  Penn.  184.     And  an  E.  345. 

[299] 


289*  THE   LAW   OF   CONTRACTS.  [BOOK  I. 

may  be  necessary  to  ascertain  whether  the  tradesman  supplying 
her  dealt  with  her  as  on  her  own  account,  making  charges  to 
her  alone,  and  receiving  payment  from  time  to  time  from  her 
alone  ;  for  such  facts  would  go  far  to  show  that  he  dealt  with 
the  wife  on  her  own  credit,  and  not  on  her  husband's,  (e) 

*But  if  the  articles  be  more  or  better  than  are  necessary  for 
the  wife,  still  the  husband  may  be  held,  not  upon  his  author- 
ity as  implied  by  the  law,  but  upon  sufficient  evidence  of  his 
express  authority  or  assent ;  and  for  this  purpose  compara- 
tively slight  evidence  is  sufficient ;  and  the  mere  fact  that  he 
saw  and  knew  that  she  possessed  and  used  the  property,  or 
even  that  she  had  ordered  it  and  made  no  objection,  may 
be  enough  for  this  purpose.  (/)  For  so  long  as  the  hus- 
band lives  with  his  wife,  he  is  liable  to  any  extent  for  goods 
which  he  distinctly  permits  her  to  purchase.  That  the  hus- 
band may  withhold  his  authority,  and  is  always  saved  from 
liability  by  express  notice  and  prohibition,  is  perhaps  more  clear 
by  the  earlier  authorities  than  by  the  later.  It  was  long  since 
decided  that  if  the  wife  lives  with  the  husband,  and  he  pro- 
hibits a  tradesman  from  supplying  her  with  articles  of  dress, 
he  cannot  be  made  liable  for  them,  because,  in  the  language 
of  Lord  Hale,  "  it  shall  not  be  left  to  a  jury  to  dress  my  wife 


(e)  It  is  always  a  question  of  fact  for  by  both  parties  to  be  npon  the  credit  of 

the  jury  whether  the  tradesman  gives  her  separate    funds    for    maintenance, 

credit  to  the  wife  for  articles  delivered  2  Story  on  Eq.  Jur.  §  1401.     See  also 

to  her,  and  if  the  credit  is  once  given  to  Owens  v.  Dickinson,  1  Craig  &  Ph.  48 

her,  the  husband  will  not  be  liable,  al-  Murray  v.  Barlee,  3  My.  &  Keen,  209 

thougli  the  articles  may  be  necessary,  N.  A.  Coal  Co.  v.  Dyett,   7  Paige,  9 

and  although  the  wife  lives  with  him,  Gardners.  Gardner,  Id.  112. 
and  he  sc^s  her  wear  tliem,  without  ob-         /  f^  Waithman  v.  Wakefield,  1  Camp, 

jection.    Beritly  r.  Griffin,  5  Taunt.  356  ;  jgO.     The  mere  fact  that  the  husband 

Metcalf  y    Shaw,  3  Camp.  22  ;  Stam-  gggs  ^i.^  .^ife  wearing   the  goods  does 

mers  v.  Macomb,  2  ^^  end.  454  ;  Moses  ^^^  i^^  ^ase,  if  it  be  shown  that  he 

V.  Pogartie  2  Hill,  So.  Car.  335 ;  Shel-  disapproved  of  the  conduct  of  the  wife 

ton  V.  Pendleton  18  Conn.  417  ;  for  the  j^  ordering  them.    Atkins  v.  Curwood, 

law  does  not   allow  a  person  who  has  7  c.  &  P.  756.     And  where  no  express 

once  given  credit  to  A.,  knowing  all  the  authority  is  shown,  the  extravagant  na- 

facts,  afterwards  to  shift  bis  claim  and  ^^^.^  ^f  jj^g  ^^-^f^,^  ^^der  is  always  proper 

charge  B.     Lcggat  v.  Reed,  1  C.  &  P.  to  be  taken  into  consideration  by  the 

16.    And  wherever  a  married  woman  -^rv,  as  showing  that  the  wife  had  no 

lives  apart  from  her  husband,  having  a  ^^^^^   authority.     Lane   v.  Ironmonger, 

separate  estate  and  maintenance  secured  13  m.  &  W.  368  ;  Freestone  v.  Butcher, 

to  her,  there  may  be  good  ground  to  hold,  9  c.  &  P.  647  ;    Montague  v.  Benedict, 

that  all  her  debts   contracted  for  such  3  jj.  &  ^j..  631 5  Seaton  v.  Benedict,  5 

maintenance,  and  m  the  course  of  her  jjing.  28. 
dealings  with  tradesmen,  are  understood 

[300] 


CII.  XVII.]  MAERIED   WOMEN.  *290 

in  what  apparel  they  think  proper."  (g-)  And  this  doctrine 
is  maintained  by  many  cases,  and  the  rule  to  be  gathered 
from  them  would  seem  to  be  that  the  implied  authority  of 
the  husband  may  always  be  rebutted  by  proof  of  express 
prohibition.  We  cannot  but  think  it  certain,  however,  that 
*this  rule  would  be  greatly  modified,  at  least  in  this  country, 
under  circumstances  which  distinctly  required  such  modifi- 
cation. As,  for  instance,  suppose  the  husband  to  be  rich  and 
penurious,  and  that  he  gave  his  wife  garments  enough  to 
prevent  her  suffering  froiTi  cold,  but  only  of  such  coarse 
fabric  or  materials  that  she  could  not  wear  them  in  the 
street ;  or  that  from  bad  temper  or  cruelty  he  gave  her  no 
clothing,  so  that  for  decency's  sake  she  was  obliged  to  re- 
main always  in  her  chamber,  and  even  there  suffered  from 
cold ;  we  cannot  doubt  that  the  husband  would  be  held  lia- 
ble in  such  cases,  the  law  resting  his  liability,  if  necessary, 
upon  an  absolute  presumption  of  his  authority;  as  has  been 
held  in  the  case  of  his  turning  her  out  of  doors  without  her 
fault.  And  the  reason  and  justice  of  the  rule  would  be  fully 
satisfied  if  the  husband,  living  with  his  wife,  were  held  an- 
swerable for  necessaries  supplied  to  her,  with  or  without 
notice  of  prohibition ;  but  where  there  was  express  pro- 
hibition, then  the  jury  should  be  instructed  that  the  word 
"  necessaries  "  should  be  construed  very  strictly.  It  is  said, "  the 
law  will  not  presume  so  much  ill  as  that  a  husband  should 
not  provide  for  his  wife's  necessities."  (A)  This  should  not 
be  presumed  ;  but  when  it  is  proved,  the  lav/  will  not  do  so 
much  ill  as  to  leave  her  without  necessaries.  The  later  author- 
ities seem  indeed  to  change,  and  as  we  think  materially  for 
the  better,  the  ground  upon  which  the  liability  of  the  husband 
for  necessaries  furnished  to  the  wife  has  hitherto  rested.  Gene- 
rally, at  least,  it  has  been  put  upon  her  agency  and  his  author- 
ity. Undoubtedly  this  has  been  stretched  very  far,  and 
authority  to  contract  for  the  husband  sometimes  implied  from 
circumstances  which  not  only  suggest  no  rational  probability 

(r/)  Manby  v.  Scott,  1  Sid.  122;  Bi\c.     Bolton  v.  Prentice,  Str.  1214;  Rcnaux 
Abr.   Bar.  ■&  F.   (H) ;  Ethcrincton   v.     v.  Teaklo,  20  E.  L.  &  K.  345. 
Parrot,  2  Ld.  Raym.  1006,  1  Salii.  118:         (h)  Lord  Hale,  in  Mauby  v.  Scott,  1 

Sid.  109. 

VOL.    I.  26  [301] 


291*  •  THE   LAW    OF    CONTRACTS.  [bOOK   I. 

of  any  such  authority,  but  seem  to  be  strongly  opposed  to  this 
supposilion;  it  sometimes  appears  to  be  a  legal  supposition, 
not  only  without  fact,  but  opposed  to  fact.  It  seems,  indeed, 
absurd  to  say  that  a  man  who  has  driven  his  wife  from  his 
house  and  his  presence,  and  manifested  by  extreme  cruelty 
his  utter  hatred  of  her,  was  all  the  time  constituting  her  his 
agent,  and  investing  her  with  authority  to  bind  him'and  his 
*property.  And  if  we  suppose  the  case,  where  a  wife  perfect- 
ly incapacitated  by  infirmity  of  body  or  mind  from  making 
any  contract  at  all,  is  supplied  with  necessaries  by  one  who 
finds  her  driven  from  home  and  ready  to  perish,  and  who 
now  comes  to  her  husband  for  indemnity,  we  cannot  doubt 
that  he  would  recover.  But  the  proposition  would  seem  too 
absurd  even  to  take  its  place  among  the  fictions  of  the  law, 
that  the  wife,  when  she  received  this  aid,  promised  in  the  hus- 
band's name  that  he  would  pay  for  it,  and  that  he  had  given 
her  a  sufficient  authority  to  make  this  promise  for  him.  For 
these  and  other  reasons  courts  now  show  a  tendency  to  rest 
the  responsibility  of  the  husband  for  necessaries  supplied  to 
the  wife,  on  the  duty  which  grows  out  of  the  marital  relation. 
He  is  her  husband  ;  he  is  the  stronger,  she  the  weaker ;  all 
that  she  has  is  his ;  the  act  of  marriage  destroys  her  capa- 
city to  pay  for  a  loaf  with  her  own  money ;  and  as  all  she 
then  possesses,  and  all  she  may  afterwards  acquire,  are  his 
during  life  and  marriage,  upon  him  must  rest,  with  equal 
fullness,  if  the  law  would  not  be  the  absolute  opposite  of  jus- 
tice, the  duty  of  maintaining  her  and  supplying  all  her 
wants  according  to  his  ability.  And  we  think  this  plain  rule 
of  common  sense  and  common  morality  is  becoming  a  rule 
of  the  common  law.  (i) 


(i)  In  Read  v,  Legard,  4  E.  L.  &  E.  done  after  the  marriage,  and  which  he 

523,  the    husband  was  a  lunatic,  con-  must  be  in  a  condition  to  persist  in  or 

fined  in  an  asylum  as  dangerous  ;  and  revoke."     Pf>//oc7.-,  C. B., said  : — ''This 

the  phiintiff  had  supplied  the  wife  with  rule  must  be  discharged.     The  question 

necessaries.    Hill, of  counsel,  says,  arfju-  raised  by  it  is,  whether  an  action  can  be 

endo :  — "  Not  only  has  it  never  been  maintained   against   a  defendant,  who 

decided  judicially  that  by  the  mere  fact  has  been  a  lunatic,  for  things  supplied 

of  marriage  a  man  Confers  on  his  wife  for  the  necessary  support    of  his  wife 

an  irrevocable  authority  to  bind  his  ere-  during  the  lunacy.     It  appears  to  mc 

dit,  but  every  thing  tends  to  show  that  that  the  defendant  is  liable  in  such  an 

her  right  so  to  do  is  derived  from  some  action.     The  action  is  founded  on  this, 

act,  real  or  supposed,  of  the  husband,  that  the  defendant  has  taken  on  him  a 

[302] 


CH.   XVII.] 


MARRIED    WOMEN. 


29: 


If  a  married  woman  carries  on  trade,  and  her  husband 
lives  with  her  and  receives  the  profits,  or  they  are  applied  to 
the  maintenance  of  the  family,  the  law  presumes  that  she 
was  his  agent  in  this  trade,  and  had  his  authority  to  make 
the  necessary  purchases,  (j)  So  an  authority  may  be  pre- 
sumed from  habitual  acts  of  agency,  or  from  confirmation, 
which  may  be  express  or  implied,  as  where  a  wife  was  in 
the  habit  of  drawing,  indorsing,  accepting,  or  paying  bills 
and  notes  for  her  husband,  and  this  he  knew  and  sanctioned, 


duty  —  having  contracted  marriage  with 
the  person  sustained  by  the  plaintiff, 
he  lias  thereby  become  in  point  of  hiw 
liable  for  her  maintenance,  and  if  he 
fails  to  provide  for  that  maintenance, 
except  under  certain  circumstances 
which  justify  him  in  withholding  it,  she 
lias  autiiority  to  pledge  his  credit  to 
procure  it.  It  may  be  true  as  stated  by 
Mr.  Hill,  that  no  case  has  yet  arisen  in 
which  this  precise  point  was  brought 
before  any  court  ;  but,  on  the  other 
hand,  none  of  the  dicta  that  occur  in 
any  of  the  cases  cited  furnish  a  clew  to 
decide  the  present  one  adversely  to  the 
plaintiff."  Alckrson,  B.,  in  the  course 
of  the-  trial,  had  said  :  —  "It  is  a  mon- 
strous proposition,  that  a  man  who 
drives  a  woman  out  of  doors,  who  hates, 
who  abominates  her,  actually  gives  her 
authority  to  make  contracts  for  him." 
He  and  Plait,  and  Martin,  BB.,  agreed 
with  Pollock,  C.  B.  Martin,  B.,  said  :  — 
"  My  brother  Alderson  has  stated  the 
real  truth  respecting  the  obligation  of 
the  defendant  and  the  principle  of  his 
liability ;  namely,  that  by  contracting 
the  relation  of  marriage,  a  husband 
takes  on  him  the  duty  of  supplying  his 
wife  with  necessaries ;  and  if  he  docs 
not  perform  that  duty,  either  through 
his  own  fault,  or  in  consequence  of  a 
misfortune  of  this  kind,  the  wife  has  in 
consc(pience  of  that  relation  a  right  to 
provide  herself  with  them,  and  the  hus- 
band is  responsible  for  them.  And 
although  in  the  declaration  the  debt 
sued  on  is  alleged  to  be  the  debt  of  the 
defendant  contracted  at  his  request,  the 
truth  is  that  it  is  the  wife  who  contracts 
the  debt,  while  the  husband  is  respon- 
sible for  it."  See  also  Montague  v. 
Benedict,  ,'5  B.  &  Cr.  631,  and  Seaton  v. 
Bcneiliet,  .5  Bing.  28.  (In  these  very  in- 
teresting cases  on  the  liability  of  the 


husband  for  goods  furnished  to  the 
wife,  Mr.  Smith,  in  his  work  on  Con- 
tracts, p.  286,  says  the  name  of  the  de- 
fendant is  fictitious,  and  borrowed  from 
Shakspeare's  JMuch  Ado  about  No- 
thing ;  the  defendant  being  actually  "  a 
highly  respectable  professional  gentle- 
man," whose  name  is  not  given.)  A 
similar  doctrine  was  laid  down  in  Shaw 
V.  Thompson,  16  Pick.  198,  (18.34.) 
Shaw,  C.  J.,  in  that  case  says  :  —  "  By 
law  a  husband  is  entitled  to  all  the  per- 
sonal property  of  the  wife,  to  all  her 
earnings  and  acquisitions,  and  to  the 
measure  of  her  real  estate  ;  it  also 
throws  on  him  the  obligation  to  support 
and  maintain  her."  And  in  Sykes  v. 
Halstead,  1  Sandf.  Sup.  Ct.  483,"it  was 
held,  that  where  a  husband  turns  his 
wife  away,  or  compels  her  to  go  by  ill- 
treatment,  and  refuses  to  provide  for 
her,  he  gives  her  a  credit  with  the  whole 
community,  although  it  be  expressly 
forbidden  by  him ;  and  she  has  a  right 
to  be  supported  by  him. 

(/)  Petty  I'.  Anderson,  2  C.  &  P.  38 ; 
Clifford  V.  Burton,  1  Bing.  199.  — But 
in  Smallpiece  v.  Dawes,  7  C.  &  P.  40, 
where  A.,  who  kept  a  fruit  shop  in  Lon- 
don, became  a  bankrupt  in  1824,  but 
did  not  surrender  to  his  commission, 
and  from  that  time  to  1833  the  business 
was  carried  on  by  his  wife,  to  whom 
fruit  was  supplied,  between  1828  and 
1832,  to  an  amount  exceeding  £266, 
and  evidence  was  given  to  show  that  A. 
was  seen  in  London  a  few  times  be- 
tween 1824  and  1833,  and  was  arrested 
at  the  shop  in  1833,  and  that  he  attend- 
ed the  marriage  of  liis  two  daughters  at 
Mary-le-bone  church ;  it  was  held  that 
proof  of  these  facts  was  not  sufficient  to 
go  to  the  jury  to  show  that  A.'s  wife 
acted  as  his  agent,  so  as  to  charge  him 
with  the  price  of  the  fruit. 

[303] 


293' 


THE  LAAV   OF     CONTRACTS. 


[book  I. 


his  authority  to  her  will  be  presumed,  {k)  Or  if  such  bills 
*and  notes  are  usually  a  part  of  a  eertain  business  which  is 
intrusted  to  the  wife  by  the  husband,  he  would  undoubtedly 
be  held  liable  for  them.  Whether  a  married  woman  can 
borrow  money,  even  for  necessaries,  and  her  husband  be  held 
liable  on  his  implied  authority,  seems  not  to  be  settled.  (/) 
If  the  lender  can  show  that  the  money  was  used  by  the  hus- 
band, then  he  can  hold  him. 

When  the  cohabitation  with  the  husband  ceases,  and 
they  live  separately,  then  a  new  state  of  things  arises, 
and  with  it  new  rules  of  law.  The  wife  separates  from 
her  husband,  either  by  his  fault,  or  by  her  own,  or  by 
mutual  consent  and  agreement.  In  the  first  case  she  car- 
ries with  her  all  her  rights  to  necessaries,  and  he  who  sup- 
plies them  to  her  may  hold  her  husband  liable  for  their 
price,  {m)     And  we  deem  it  to  be  the  same  thing  in  law,  as 


(k)  Cotes  r.  Davis,  1  Camp,  485  ; 
Bavlow  V.  Bishop,  1  East,  432 ;  Prest- 
wick  V.  Marshall,  7  Bing.  565.  His  au- 
thority to  her  to  make  notes  in  his 
name  cannot,  however,  be  inferred  from 
the  mere  fact  that  he  knew  she  was  car- 
rying on  business,  and  that  she  gave 
the  note  in  the  course  of  such  business  ; 
and  on  a  note  so  given  the  husband  is 
not  liable  even  to  a  bond  fide  indorsee. 
Reakert  v.  Sanford,  5  Watts  &  Serg. 
164. —  Whenever  the  husband  author- 
izes the  wife  to  execute  notes  in  his 
name,  they  must  purport  on  their  face 
to  be  made  in  his  behalf,  or  by  her  as 
agent,  or  he  will  not  be  bound.  IVIinard 
V.  Mead,  7  Wend.  08.  —  But  in  the  late 
case  of  Lindus  v.  Bradwell,  5  C.  B.  58.3, 
where  a  bill  of  exchange  addressed  to 
"  William  B."  was  accepted  by  his 
wife,  by  writing  her  own  name,  "  Mary 
B."  upon  the  back,  which  was  present- 
ed to  tlie  husband  after  it  became  due, 
who  said  he  knew  all  about  it,  that  it 
was  for  a  milliner's  bill,  and  that  he 
would  pay  it  sliortly,  he  was  held  liable 
as  acceptor,  although  he  had  not  ex- 
pressly authorized  his  wife  so  to  accept 
the  bill. 

(/)  At  law  a  husband  is  not  liable  for 
money  lent  to  the  wife,  unless  his  re- 
quest be  averred  and  proved.  Stone  v. 
Macnair,  7  Taunt.  4?2  ;  Stephenson  v. 
Hardy,  3  Wils.  388 ;  Walker  v.  Simp- 
son, 7  Watts  &  Serg.  83 ;  Grendell  v. 

[304] 


Godmond,  5  Ad.  &  Ell.  755  ;  Earle  v. 
Peale,  1  Salk.  387 ;  Darby  v.  Boucher, 
Id.  279.  In  equity,  however,  the  lender 
will  be  allowed  to  stand  in  place  of 
the  tradesmen,  and  to  have  satisfaction 
as  far  as  they  could,  had  they  been 
plaintiffs.  Harris  v.  Lee,  1  P.  Wms. 
482,  Prcc.  in  Chanc.  5l)2  ;  Walker  v. 
Simpson,  supra;  Marlow  v.  Pitfield,  I 
P.  Wms.  558.  See  ilay  r.  Skey.  16 
Simons,  588,  18  Law  Jour.  308.  "And 
where  money  was  advanced  to  the  wife 
living  with  her  husband,  and  he  after 
the  wife's  decease  promised  to  repay 
the  same,  "  when  convenient,"  but  said 
he  was  not  privy  to  the  loan,  it  was 
held  that  there  was  evidence  to  go  to  the 
jury  that  the  wife  had  boiTOwed  the 
money  with  the  sanction  of  her  hus- 
band, or  that  he  ratified  the  act,  and  the 
plaintiff  had  a  verdict.  West  v.  AVheel- 
er,  2  C.  &  K.  714. 

(m)  Bolton  v.  Prentice,  2  Strange, 
1214;  Harris  v.  Morris,  4  Esp.  41  :  Raw- 
lyns  V.  Vandvke,  3  Esp.  251  ;  Hodges 
V.  Hodges.  1  Esp.  441 ;  Aldis  v.  Chap- 
man. 1  Selw.  X.  P.  281  ;  McCutchen  v. 
McGahay,  1 1  Johns  281  ;  Houliston  v. 
Smyth,  3  Bing.  127  ;  Howard  v.  Whet- 
stone, 10  Oiiio,  365;  Emmett  v.  Nor- 
ton, 8  C.  &  P.  506;  Clement  v.  Matti- 
son.  3  Richardson,  93  ;  Fredd  v.  Eves, 
4  Harring.  385.  And  if  a  wife  is 
justified  in  leaving  her  husband,  a 
request   on  his  part  that   she  will   re- 


CH.  XVII.] 


MARRIED    WOMEN. 


*294 


well  as  in  reason,  whether  he  actually  expels  her  from  his 
*  house  without  her  fault,  or  compels  her  to  leave  his  house  by- 
cruelty  to  her,  or  by  his  misconduct  in  it,  as  by  introducing 
a  prostitute  into  it.  (n)  The  dictum  of  Lord  Eldon,  that 
"  where  a  man  turns  his  wife  out  of  doors,  he  sends  with  her 
credit  for  her  reasonable  expenses,"  is  undoubtedly  law.  (o) 

Where  husband  and  wife  live  together,  there  is  a  pre- 
sumption of  law  arising  from  cohabitation,  that  the  husband 
assents  to  contracts  made  by  the  wife  for  the  supply  of  arti- 
cles suitable  to  their  station,  means,  and  way  of  life,  (p) 
But  when  this  cohabitation  ceases,  then,  by  the  English  au- 
thorities, the  presumption  of  law  is  against  his  assent ;  and 
the  husband  is  not  liable,  unless  such  presumption  be  rebut- 
ted by  showing  his  authority  from  the  nature  and  circum- 
stances of  the  separation,  or  the  conduct  of  the  husband,  or 
the  condition   of  the  wife,  and   the   nature  of  the  articles 


turn  will  not  determine  his  liabilit)'  for 
necessaries  supplied  to  her  during  the 
separation.  Emery  ?\  Emery,  1  Younge 
&  Jervis,  501.  Where,  however,  the 
person  supplying  the  wife  witii  necessa- 
ries relies  upon  her  husband's  ill-treat- 
ment as  good  cause  for  her  leaving  him, 
he  must  show  affirmatively  that  tlie  sepa- 
ration took  place  in  consequence  of  the 
luisband's  misconduct.  It  is  not  enough 
to  prove  that  there  were  quarrels  and 
personal  conflicts  between  them,  unless 
it  he  shown  that  the  husband  was  the 
oflending  party.  Blowers  v.  Sturtevant, 
4  Denio,  4G.  And  see  Reed  v.  Moore, 
5C.  &  P.  200.  —  Perhaps  the  same  degree 
of  cruelty  which  would  be  good  cause 
for  a  divorce  would  be  sufficient  to 
autliorize  the  wife  to  leave  her  husband, 
and  charge  him  for  her  su])port. 

(»)  In  tlie  case  of  Harwood  v.  Heffcr, 
3  Taunt.  421,  where  tlie  evidence  was 
that  the  husband  treated  the  wife  with 
great  cruelty,  and  conlined  her  in  her 
chamber  under  pretence  of  insanity, 
and  had  taken  another  woman  into  his 
house,  witli  wliom  ho  cohabited,  and  on 
this  the  wife  escaped  ;  the  Court  of 
Common  Pleas,  in  1811,  apparently 
overlooking  the  fact  of  the  husband's 
cruelty,  did  not  think  that  tlie  mere  in- 
troduction of  a  prostitute  into  the  fa- 
mily was  sufficient  to  justify  the  wife's 
leaving,  and  taking  up  necessaries  on 

20* 


her  husband's  account.  But  this  doc- 
trine has  been  subsequently  decidedly 
condemned,  and  we  think  it  unsound. 
See  Ilouliston  v.  Smyth,  10  Moore,  482, 
3  Bing.  127  ;  Hunt  v.  De  Blaquiere,  5 
Bing.  .')62 ;  Fredd  v.  Eves,  4  Harring. 
38,5.  It  is  said  by  Bronson,  C.  J.,  in 
Blowers  v.  Sturtevant,  4  Dcnio,  46, 
that  the  doctrine  contained  in  Harwood 
V.  Ileffer  cannot  be  law  in  a  Christian 
country. 

(o)  ilawlins  v.  Vandyke,  3  Esp.  250. 

(p)  Etherington  i\  Parrot,  1  Salk. 
118  ;  McCutchen  v.  McGahay,  llJohns. 
281  ;  Fredd  v.  Eves,  4  Harring.  385. 
Cohabitation  is  so  strong  evidence  of 
assent  and  authority  by  the  husband 
that  he  will  be  liable  for  necessaries  fur- 
nished the  wife,  although  they  were  not 
legally  married,  and  although  the  trades- 
man knew  it.  Watson  r.  Threlkeld,  2 
Esp.  637  ;  Robinson  v.  Nahon,  1  Camp. 
245;  Blades  v.  Free,  9  B.  &  C.  167. 
But  cohabitation  is  not  conclusive  evi- 
dence of  an  authority  to  purchase  even 
necessaries  ;  and  it  may  be  rebutted,  as 
by  sliowing  that  the  husband  supplied 
her  sufficiently  himself,  or  that  lie  gave 
her  sufficient  ready  money  to  make  the 
purchases.  Manl)y  u.  Scott,  1  Sid.  109; 
Resolution  iii.  2  Smith's  Lead.  Cas.  (3d 
ed.)  264.  Of  course  the  jn-oof  of  such 
facts  lies  on  the  husband.  Clifford  v. 
Baton,  3  C.  &  P.  15. 

[305] 


295" 


THE   LAW    OF   CONTRACTS. 


[book  I. 


supplied  to  her.  (rj)  And  where  the  husband  and  wife  live 
•separate,  there  the  party  supplying  hermay  be  regarded,  in  the 
words  of  Lord  Mansfield,  as  standing  in  her  place.  And  it 
is  for  him  to  make  strict  inquiry  into  the  terms,  cause,  and 
character  of  the  separation  ;  for  he  trusts  her  at  his  peril.  If 
the  separation  has  taken  place  by  the  husband's  act,  and 
against  the  wife's  will,  still,  if  it  be  for  her  adultery,  it  was 
so  far  a  justifiable  act  that  the  husband  is  no  longer  bound 
even  for  strict  necessaries  supplied  to  his  wife,  (r)  Whether 
this  rule  of  law  would   be  modified  by  the  power  given  in 


(7)  The  English  authorities  are  uni- 
form that  it'  the  husband  and  wife  live 
separate  and  apart,  the  presumption  of 
law  is  against  the  husband's  liabilit}', 
even  for  the  wife's  necessaries,  and  that 
the  burden  of  proof  is  on  the  tradesman 
to  show  that  the  separation  took  place 
under  such  circumstances  as  to  con- 
tinue the  husband's  liability.  Clifford 
V.  Laton,  3  C  &  P.  15  ;  Mainwaring  v. 
Leslie,  2  C.  &  P.  507  ;  Bird  v.  Jones,  3 
Mann.  &  Ryl.  121 ;  Edwards  v.  Towels, 
5  Mann.  &  Grang.  624  ;  Hindley  v. 
Westmeath,  6  B.  &  C.  200 ;  Blowers  v. 
Sturtevant,  4  Denio,  46  ;  Walker  v. 
Simpson,  7  "Watts  &  Sc-rg.  83  ;  Cany  v. 
Patton,  2  Ashm.  140.  But  in  Rumney 
V.  Keyes,  7  New  Hamp.  571,  where  the 
question  as  to  the  burden  of  proof  and 
the  presumptions  of  law  in  such  case 
were  much  discussed,  the  rule  is  adopt- 
ed that  the  burden  of  proof  is  on  the 
husband  to  show  that  the  separation 
was  not  through  his  fault,  and  prima 
facie^  his  liability  still  continues  for  his 
wife's  necessaries.  See  also  Frost  v. 
Willis,  13  Verm.  202;  Clancy  on  Hus- 
band &  Wife,  28. 

(?•)  Hardie  v.  Grant,  8  C.  &  P.  512  ; 
Hunter  v.  Boucher,  3  Pick.  289  ;  Child 
I'.  Hardyman,  2  Strange,  875 ;  Main- 
wairing  v.  Sands,  1  Strange,  706 :  Mor- 
ris V.  Martin,  1  Strange,  647.  And  in 
such  case  no  notice  to  the  tradesman  of 
the  wife's  adultery  and  separation  is  ne- 
cessary in  order  to  discharge  the  hus- 
band from  his  liability.  Morris  v.  Mar- 
tin, 1  Strange,  647  ;  Mainwairing  v. 
Sands,  1  Strange,  707.  —  Or  if  any  no- 
tice is  necessary,  general  notoriety  is 
sufficient.  Parker,  C.  J.,  in  Hunter  v. 
Boucher,  3  Pick.  289.  And  in  like 
manner  if  the  husband  and  wife  live 
apart  by  consent,  he  paying  her  a  suffi- 

[300] 


cient  maintenance,  he  is  not  liable  for 
her  necessaries,  she  having  been  guilty 
of  adultery  after  the  separation.  Cragg 
V.  Bowman,  6  Mod.  147.  And  the 
same  rule  applies  where  the  wife  volun- 
tarily, and  without  any  fault  in  the  hus- 
band, elopes  from  liim,  but  has  not  been 
guilty  of  actual  adultery  ;  in  such  case 
the  husband  cannot  be  made  liable  for 
necessaries  furnished  the  wife  by  third 
persons,  although  they  had  no  know- 
ledge of  the  elopement.  Brown  v.  Pat- 
ton,  3  Humph,  135  ;  McCutchen  v. 
McGahay,  11  Johns.  281;  Hindlev  v. 
Marquis  of  Westmeath,  6  B.  &  C.  2*00 ; 
Cany  v.  Patton,  2  Ashm.  140.  How- 
ever, although  the  wife  be  actually 
guilty  of  adultery,  yet  if  cohabitation 
continue,  the  husband  is  still  liable  for 
her  necessaries.  Norton  v.  Fazan.  1  B. 
&  P.  226  ;  Harris  v.  Morris,  4  Esp.  41. 
Let  a  woman  be  ever  so  vicious,  yet 
while  she  cohabits  with  her  husband  he 
is  bound  to  provide  necessaries  for  her, 
and  is  liable  to  the  actions  of  such  per- 
sons as  furnish  her  with  them  ;  for  his 
bargain  was  to  take  her  for  better  or  for 
worse.  Per  Holt,  C.  J.,  in  Robison  v. 
Gosnold,  6  Mod.  171.  For  continued 
cohabitation  after  knowledge  of  her 
adultery  is  a  condonation  of  her  offence. 
Quincv  V.  Quincv,  10  New  Hamp.  272  ; 
Hall  V.  Hall,  4  New  Hamp.  4G2.  And 
even  if  the  husband  had  no  knowledge 
of  her  adultery,  yet  if  he  continue  to 
live  with  her  he  would  be  liable  for  her 
necessaries  ;  for,  as  we  have  before  seen, 
any  man  living  with  any  woman,  as 
man  and  wife,  is  liable  for  her  support, 
although  they  were  never  married,  and 
the  tradesman  knew  it.  Watson  v. 
Threlkcld,  2  Esp.  637  ;  Robinson  i-. 
Nahon,  1  Camp.  245 ;  Blades  v.  Free, 
9B.  &  C.  167. 


en.  XVII.]  MARRIED    WOMEN.  *296 

nearly  all  our  States  to  the  husband,  to  obtain  a  divorce  a 
vinculo  from  the  wife  for  her  adultery,  may  be  doubted.  We 
see  no  good  reason  why  it  should  be,  and  our  cases  which 
touch  upon  this  question  seem  to  adopt  the  English  view,  {s) 
But  more  question  may  exist  as  to  another  part  of  the  Eng- 
lish law  on  this  subject ;  for  it  has  been  there  distinctly  de- 
cided that  if  the  husband  commits  adultery,  and  brings  his 
adulteress  into  his  house,  and  treats  his  wife  with  great  cru- 
*elty,  and  then  turns  her  out  into  the  streets,  and  she  after- 
wards commits  adultery,  and  then  being  repentant,  offers  to 
return  to  him,  and  is  wholly  without  means  of  subsistence, 
nevertheless  no  action  for  furnishing  her  with  necessaries  is 
maintainable.  (/)  But  this  is  certainly  very  severe  law,  and 
our  courts  would  be  very  reluctant  to  apply  it.  If  the  hus- 
band rests  his  defence  upon  the  wife's  adultery,  it  must  be 
very  strictly  proved,  and  a  verdict  in  an  action  for  criminal 
conversation  is  not  admissible  as  evidence  to  prove  it.  (u) 
If  after  such  adultery  the  husband  receives  her  back  into  his 
house,  he  must  maintain  her  as  before;  and  cannot  discharge 
himself  of  his  liability  for  necessaries  supplied  to  her  but  by 
proof  of  a  new  act  of  adultery,  {v) 

If  the  wife  leaves  the  husband  without  just  cause,  and  re- 
fuses to  cohabit  with  him,  then  it  is  certain  that  she  loses  all 
right  to  a  maintenance  from  him.  For  the  opposite  rule 
would  encourage  a  wilful  breach   of  the  marriage  vow  and 


(s)  See  Hunter  v.  Boucher,  3  Pick,  that  the  defendant  had  afterwards  taken 

291.  her  back.     Held,  t!iat  under  these  cir- 

(t)  Govier  v.  Hancock,  6  T.  R.  G03.  cumstances  he  was  liable.  Lord  Keni/on 

And  it  has   likewise  been  held  in  Eng-  said: — '-With   respect  to  her   having 

land  tliat  a  husband  is  not  liable  to  the  been  formerly  guilty  of  adultery,  and 

penalty  of  stat.  5  Geo.  4,  c.  83,  §  3,  for  having  been  in  the  iMagdalen  Asylum, 

negleciing  and  refusing  to  maintain  his  tliough   an   adulterous    elopement  will 

wife,  who  has  left  him  and  committLMl  prevent  the  husband  from   being  liable 

adultery,  although  he  has  himself  since  for  articles  furnished  to  the  Avife  during 

her  departure  been  guilty  of  the  same  the  term  of  her  elopement,  that  is  no 

crime.     King  v.  Tiintan,  1   B.  &  Ad.  answer  now.     The  husband  has  taken 

227.  her  back,  and  she  was  from  that  time 

(it)  Hardic  v.   Grant,  8  C.  &  P.  512.  entitled  to  dower ;  tiho  wcis  sponte  rttmc- 

'BitcaiKC  [t  h  1-es  inter  alias  pcu-les.  ta,  and   of  course  entitled  to  mainte- 

(v)  Harris  y.  Morris,  4  Esp.  41.    This  nance  during  coverture,  if  her  Inisband 

was  an  action  of  assumpsit  to  recover  turned  her  out  of  doors."     And  wiicre 

for  necessaries  furnished  to  the  defend-  the  husband  left  his  wife,  who  had  been 

ant's  wife.     It  appeared    that  the  wife  guilty  of  adultery,    still    living   in    his 

had  formerly  eloped  for  adultery,  and  house,  with    two    children    bearing  his 

been   in   the    Magdalen  Asylum';    but  name,  he  was  held  liable  for  necessaries 

[307] 


297*  THE   LAAV   OF   CONTRACTS.  [eOOK  I. 

duty,  and  weaken  the  wholesome  influences  which  keep  to- 
gether those  who  have  solemnly  agreed  to  live  together,  (iv) 
*By  the  civil  law  also,  if  a  wife  leave  her  husband  without 
his  fault,  he  is  not  obliged  ei  aliqualiter  submitiisLrarc.  [x) 
But  if  after  deserting  him  she  offers  to  return,  we  think  his 
obligation  to  receive  her  or  maintain  her  must  depend  upon 
the  circumstances  of  her  separation,  and  its  length,  and  her 
conduct  during  the  separation.  If  no  sufficient  objection 
arises  from  these  circumstances,  then  he  is  bound  to  receive 
her  ;  otherwise  not.  (//)  We  repeat,  therefore,  that  if  the 
wife  lives  separate  from  her  husband,  it  is  obvious,  from  the 
many  questions  which  may  be  raised,  that  it  is  incumbent 
on  one  who  would  supply  her  with  necessaries  on  the  hus- 
band's credit,  but  without  his  express  authority,  to  look  cau- 
tiously into  all  the  facts  and  circumstances,  (c) 

When  the  separation  takes  place  by  the  consent  and  agree- 
ment of  both  parties,  something  of  uncertainty  arises,  from 
the  conflict  between  the  unwillingness  of  the  law  to  permit 
and  sanction  such  violation  of  marriage  obligation  and  duty, 
on  the  one  hand,  and  on  the  other  its  disposition  to  allow 
such  a  separation  under  circumstances  which  give  it  a  color 
of  reason,  and  to  hold  all  parties  to  their  contracts  made  in 
relation  to  it,  so  far  as  may  be  done  without  placing  the 
power  of  a  dissolution  of  marriage  too  much  in  the  hands  of 
the  married  parties.     Thus,  it  is  said  by  Sir  William  Scott, 


supplied  hei-,  by  one  who  did  not  know  on  some  other  ground,  it  will  be  equi- 
tlie  circumstances.  Korton  v.  Fazan,  1  valent  to  a  personal  application  by  the 
B.  &  P.  226.  wife  herself.  ilcGahay  v.  William's,  12 
(iv)  aianby  v.  Scott,  1  Sid.  129;  Johns.  293.  —  So  if  husband  and  wife 
Brown  v.  Patton,  3  Hump.  135  ;  Mc-  separate  by  consent,  and  provision  is 
Cutchen  v.  McGahay,  11  Johns.  281  ;  made  by  liim  for  her  maintenance,  if 
Hindley  i'.  Marquis  of  Westmeath,  6  B.  the  wife  during  such  separation  pur- 
&  C.  200 ;  Williams  v.  Prince,  3  Strob.  chase  necessaries,  and  the  parties  sub- 
Li  490. —  If,  however,  she  offers  tore-  sequently  cohabit  together,  the  husband 
turn,  not  having  been  guilty  of  adul-  will  be  liable  for  them.  Rennick  v. 
tery,  and  the  husband  refuses  to  receive  Picklin,  3  B.  Monroe,  1G6. 
her,  his  liability  for  her  future  necessa-  -  >  j^;  j^^^  ^j^_  3 
ries  IS  thereby  revived.     McCutclien  v.  ,  [  -.   %~r     , 

McGahav,  11  Johns.  281;  Clement  r.  (;y)  In  Henderson  r.  Stnngcr,  2  Dana, 
Mattison,  3  Kicliardson,  93  ;  Cunning-  293,  it  is  said  :  —  ■'  If  she  offers  to  re- 
ham  V.  Irwin,  7  S.  &  R.  247.  — And  if  turn,  and  he,  icithout  sufficient  cause,  re- 
such  application  is  made  to  the  liusband  f^^ses  to  receive  her,  his  liability  is  re- 
by  some  third  person  on  behalf  of  tlie  vivcd. 

w'ife,  and  he,  without  questioning  such  (z)  See  Blowers  v.  Sturtevant,  4  De- 
third  person's  authority,  put  his  refusal  nio,  46. 

[308] 


CH.  XVII.] 


MARRIED    WOMEN. 


*298 


that  the  obligations  of  the  marriage  contract  are  not  to  be 
relaxed  at  the  pleasure  of  one  party,  or  at  the  pleasure  of 
both,  (a)  And  it  is  well  settled  that  they  cannot  by  any 
contract  destroy  each  other's  rights.  Let  the  covenant  of 
separation  be  never  so  formal  or  solemn,  either  party  may  at 
any  time  insist  upon  a  restoration  of  all  the  rights  which 
belong  to  the  relation  of  marriage,  (b)  But  if  after  such  a 
*deed,  and  a  separation  consequent  upon  it,  the  husband  in- 
stitutes proceedings  to  recover  the  society  of  his  wife,  the 
deed,  though  no  bar,  may  still  be  evidence  as  to  the  charac- 
ter of  the  separation,  and  if  this  be  shown  to  have  arisen  from 
his  misconduct,  either  by  the  deed  itself  or  otherwise,  he  can- 
not succeed,  (c)    Nevertheless,  where  such  separation  is  made 


(a)  See  Evans  v.  Evans,  1  Hapg. 
Consist.  R.  118;  Oliver  v.  Oliver,  Id. 
364. 

(b)  Mortimer  v.  Mortimer,  2  Haf^g. 
Consist.  R.  318.  In  this  case  Sir  Wil- 
liam Scott,  in  commenting  upon  a  plea 
in  bar  to  a  suit  for  the  restitution  of 
conjugal  rights,  observed  :  —  "  The  se- 
venth and  eighth  articles  plead  the  cir- 
cumstance wiiich  led  to  the  deed  of 
separation,  and  the  deed  is  exhibited. 
The  objection  taken  against  these  arti- 
cles is,  that  deeds  of  separation  are  not 
pleadable  in  the  ecclesiastical  court,  and 
most  certainly  Ihey  are  not,  if  pleaded 
as  a  bar  to  its  further  proceedings; 
for  this  court  considers  a  private  sepa- 
ration as  an  illegal  contract,  implying 
a  renunciation  of  stipulated  duties  — 
a  dereliction  of  those  mutual  offices 
which  the  parties  arc  not  at  liberty  to 
desert — an  assumption  of  a  false  cha- 
racter in  l)Oth  parties  contrary  to  the 
real  status  persona-,  and  to  the  obligations 
which  both  of  them  have  contracted  in 
the  sight  of  God  and  man,  to  live  toge- 
ther, '  till  death  them  do  part,'  and  on 
which  the  solemnities  both  of  civil  so- 
ciety and  of  religion  have  stamped  a 
binding  authority,  from  which  the  par- 
tics  cannot  release  themselves  by  any 
private  act  of_  their  own,  or  for  causes 
which  the  law  itself  has  not  pronounced 
to  be  sufficient,  and  sufficiently  proved." 
Sec  also  Sullivan  v.  Sullivan,  2  Ad- 
dams,  Ecc.  R.  .303  ;  Smith  v.  Smith,  2 
Hagg.  Eec.  R.  (supp.)  44,  n.  a. —  Al- 
though a  deed  of  separation  upon  mu- 
tual agreement,  on  account  of  unhappy 


differences,  contain  a  covenant  not  to 
bring  a  suit  for  restitution  of  conjugal 
rights,  yet  it  is  no  bar  to  such  a  suit. 
AVestmcath  v.  Westmeath,  2  Hagg.  Ecc. 
R.  (supp.)  115. — That  deeds  of  sepa- 
ration between  husband  and  wife  amount 
to  nothing  more  than  a  mere  permission 
to  one  party  to  live  separate  from  the 
other,  and  coTifers  no  release  of  the 
marriage  contract  on  either  party,  and 
that  neither  can  violate  it,  see  Warren- 
der  r.  Warrender.  2  Clark  &  Finn.  561  ; 
Lord  St.  John  v.  Ladv  St.  John,  1 1  Ves. 
526,  5.32  ;  Wilkes  v.  Wilkes,  2  Dickens, 
791  ;  ^Marquis  of  AVestmcath  v.  ^lar- 
chioness  of  Westmeath.  1  Dow  &  Clark, 
519.  Guth  V.  Guth,  3  Bro.  C.  C.  614, 
seems  contra ;  but  this  case  is  not  of 
good  authority. 

(e)  Rex  V.  Mary  Mead,  I  Burr.  542. 
This  case  was  a  writ  of  habeas  corpus,  at 
the  instance  of  a  husband,  to  bring  up 
the  body  of  his  wife,  who  had  separated 
from  him,  and  who  was  then  living  with 
her  mother.  The  mother  brought  her 
daughter  into  court,  and  the  substance 
of  the  return  on  the  writ  of  habeas  corpus 
was,  '•  that  her  husband  having  used 
her  A'cry  ill,  in  consideration  of  a  great 
sura  wliich  she  gave  him  out  of  her 
separate  estate,  consented  to  her  living 
alone,  executed  articles  of  separation,  and 
covenanted  (under  a  large  penalty,)  •  ne- 
ver to  disturl)  her  or  any  person  with 
whom  she  should  live  ; '  that  she  lived 
with  her  mother,  at  her  oivn  earnest  de- 
sire ;  and  that  this  writ  of  habeas  corpus 
was  taken  out  with  a  view  of  seizing  her 
by  force,  or   some   other  bad  purpose." 

[309] 


299* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


by  an  instrument  to  which  a  third  person  is  a  party,  and  is 
a  trustee  for  the  wife,  and  the  husband  agrees  with  this  trus- 
tee to  give  him  a  sufficient  sum  for  her  maintenance,  such 
trustee  may  maintain  an  action  on  the  agreement.  (<-/)  And 
if  the  trustee  *  agrees  to  hold  the  husband  harmless  on  his 
liability  for  his  wife,  and  indemnify  him  against  any  farther 
expenditure  for  her,  the  husband  may  maintain  an  action  on 
such  agreement,  (e)     Without  the  intervention  of  such  third 


The  court  held  this  agreement  to  be  a 
formal  renunciation  by  the  husband  of 
his  marital  right  to  seize  her,  or  force 
her  back  to  live  with  him.  And  they 
said,  that  any  altcmpt  of  the  husband  to 
seize  her  by  force  and  violence  would  be 
a  breach  of  the  peace.  They  also  declar- 
ed, that  any  attempt  made  bj'  the  hus- 
band to  molest  her,  in  her  present  return 
from  Westminster  Hall,  would  be  a  con- 
tempt of  the  court.  And  they  told  the 
lady  she  was  at  full  liberty  to  go  where 
and  to  whom  she  pleased.  And  where 
the  wife  voluntarily  lived  apart  from 
her  husband,  without  coercion  on  the 
part  of  any  one,  it  was  held  that  the 
writ  of  habeas  corpus  should  not  be  grant- 
ed to  her  husband,  liut  that  the  remedy, 
if  there  was  no  good  cause  for  her  re- 
maining apart,  was  solely  in  the  Eccle- 
siastical Courts.  Exparte  Sandiland,  12 
E.L.  &E.  464. 

[d]  Jee  V.  Thurlow,  2  B.  &  C.  547,  4 
D.  &  R.  11  ;  Wilson  v.  Mushett,  3  B. 
&  Ad.  743.  In  this  case  the  defendant 
gave  a  bond  to  A.  and  B.  conditioned 
for  the  payment  of  an  annuity  to  his 
wife,  unless  she  should  at  any  time  mo- 
lest him  on  account  of  her  debts,  or  for 
living  apart  from  her.  By  indenture  of 
the  same  date  between  the  above  parties 
and  the  wife,  reciting  that  defendant 
and  his  wife  had  agreed  to  live  sepa- 
rate during  their  lives,  and  that,  for 
the  wife's  maintenance,  defendant  had 
agreed  to  assign  certain  premises,  &c., 
to  A.  and  B.,  and  had  given  them  an 
annuity  bond  as  above  mentioned ;  it 
■was  witnessed  that  defendant  assigned 
the  premises,  &c.,  to  them,  in  trust  for 
the  wife,  and  he  covenanted  to  A.  and 
B.  to  live  separate  from  her,  and  not 
molest  her  or  interfere  with  her  proper- 
ty ;  and  power  was  given  her  to  dispose 
of  the  same  h\  will,  and  to  sell  the  as- 
signed premises,  &c..and  buy  estates  or 
annuities  with  the  proceeds.    The  wife 

[310] 


covenanted  with  the  defendant  to  main- 
tain herself  during  her  life  out  of  the 
above  property,  unless  slie  and  the  de- 
fendant should  afterwards  agree  to  live 
togetlier  again ;  and  that  he  should  be 
indemnified  from  her  debts.  The  in- 
denture, (except  as  to  tlie  assignment,) 
and  also  the  bond,  were  to  become  void 
if  the  wife  should  sue  the  defendant  for 
alimony,  or  to  enforce  cohabitation. 
And  it  was  provided  that  if  the  defendant 
and  his  wife  should  thereafter  agree  to  live 
together  again,  such  cohabitation  should  in 
no  ivay  alter  the  trusts  created  by  the  in- 
denture. There  was  no  express  cove- 
nant on  the  part  of  tlie  trustees.  The 
defendant  and  his  wife  separated,  and 
afterwards  lived  together  again  for  a 
time,  and  this  fact  was  pleaded  to  an 
action  bj'  the  trustees  upon  tlie  annuity 
bond,  as  avoiding  that  security.  Held, 
on  demurrer  to  the  plea,  that  the  recon- 
ciliation was  no  bar  to  an  action  on  this 
bond,  since  it  did  not  appear  that  the 
bond,  and  the  indenture  of  even  date 
with  it,  were  not  really  executed  with  a 
view  to  immediate  separation  :  and  al- 
though there  might  be  parts  of  the  in- 
denture which  a  court  of  equity  would 
not  enforce  under  the  circumstances, 
yet  there  was  nothing,  on  a  view  of  the 
whole  instrument,  to  prevent  this  court 
from  giving  effect  to  the  clause  which 
provided  for  a  continuancre  of  the  trusts 
notwithstanding  a  reconciliation.  See 
also  Logan  r.  I3irkett,  1  Mv.  &  Keene, 
225. 

(e)  Summers  v.  Ball.  8  M.  &  W.  596, 
where  a  deed  of  separation  between  hus- 
band and  wife  contained, a  covenant  by 
the  wife  and  her  trustees,  that  she,  her 
executors  or  administrators,  or  the  trus- 
tees or  some  or  one  of  them,  should  and 
would  at  all  times  save,  defend,  and 
keep  harmless  and  indemnified  the  hus- 
band from  and  against  the  debt  or  debts, 
sum  or  sums  of  money,  which  she  the 


CH.  XVII.] 


MARRIED    WOMEN. 


*300 


party,  the  husband  and  wife  cannot  contract  together,  be- 
ing but  one  person  in  the  view  of  the  law.  (/)  But  such 
agreement  must  be  absolute  and  unconditional,  and  not  de- 
pendent upon  the  contingency  of  a  future  separation,  nor 
upon  the  wife's  future  consent  to  live  separate,  for  then  it  is 
regarded  as  an  inducement  to  separation,  and  is  therefore 
wholly  *void.  (g-)  And  if  the  covenant  be  in  general  to  pay 
an  annuity  to  the  wife,  the  consideration  for  it  being  the 
separation,  and  in  the  nature  of  a  continuing  consideration, 
a  subsequent  reconciliation  and  cohabitation  discharges  the 
husband  from  his  obligation,  (h)  But  the  agreement  may 
be  expressly  to" pay  to  her  or  for  her  use  such  annuity  during 
her  life,  and  then  it  is  not  affected  by  a  subsequent  coha- 
bitation, {i)      And  it  would  seem  that  if  the  annuity  is  ex- 


wife  had  then,  at  the  time  of  the  making 
of  the  iiuk-nturc,  contracted,  or  which 
she  shouUl,  at  any  time  thereafter,  dur- 
ing the  separation,  contract.  Held,  that 
this  covenant  included  debts  previously 
contracted  hy  the  wife  for  necessaries 
while  living  with  the  husband. 

(/)  Co.  Litt.  112.  a;  Reeve's  Dom. 
Eel.  89,  90  ;  Marshall  v.  Button,  8  T. 
K.  545  ;  Carter  v.  Carter,  14  Sm.  & 
Mar.  59.  He  cannot  convey  property 
directly  to  her.  Martin  v.  Martin,  1 
Greenl.  394.  —  There  is  a  recent  case 
upon  this  point,  decided  by  the  Supreme 
Court  of  Massachusetts,  by  the  name  of 
Jackson  i\  Parks,  not  yet  reported.  It 
was  assumpsit  on  two  promissory  notes, 
made  by  the  defendant's  testator  to  the 
plaintiff,  his  wife,  during  coverture. 
The  consideration  of  the  notes  was  cer- 
tain property  which  the  plaintiff  held  in 
her  own  riglit,  which  passed  to  her  hus- 
band. The  court  held  that  the  action 
could  not  be  sustained.  In  Sweat  v. 
Hall,  8  Verm.  187,  the  same  doctrine 
has  been  established. 

{;j)  Wcstnieath  v.  Salisbury,  5  Bligh, 
N.  S.  393;  Duraut  v.  Titley,  7  Price, 
577  ;  Hindlev  v.  Westmeath,"  6  B.  &  C. 
200  ;  Jce  v.  'Thurlow,  2  B.  &  C.  547  ; 
Jones  V.  Waite,  9  C.  &  P.  101. 

(A)  Scholey  v.  Goodman,  1  C.  &  P. 
36. 

(«")  Wilson  V.  Mushett,  3  B.  &  Ad. 
743.  In  this  case  Lord  Tenterden,  C.  J., 
said: — "  I  think  it  is  impossible  for  us, 
sitting  in  a  court  of  law,  to  say  that  this 


deed,  and  the  bond  on  which  the  action 
is  brought,  were  avoided  by  the  recon- 
ciliation alleged  in  the  plea.  The  argu- 
ment for  the  defendant  must  be,  that  if 
the  husband  and  wife  had  agreed  to 
live  together  again,  even  for  a  few 
hours,  and  afterwards  separated,  all  the 
provisions  of  the  deed  were  put  an  end 
to  by  condonation.  I  think  that  upon 
this  deed  we  cannot  come  to  such  a 
conclusion.  Whether  a  court  of  equity 
would  enforce  all  the  trusts  or  not  is  a 
question  with  which  we  have  nothing 
to  do.  One  proviso  of  the  deed  is,  that 
if  the  defendant  and  his  wife  shall  there- 
after agree  to  cohabit  again,  such  coha- 
bitation shall  in  no  way  alter  the  trusts 
thereby  created,  but  they  shall  stand 
valid,  and  of  as  full  cflect  to  all  intents 
and  purposes,  as  well  during  such  co- 
habitation as  in  case  they  again  live 
separate;  and  it  is  said  that  this  is  in- 
consistent with  other  parts  of  the  instru- 
ment of  separation.  But  I  do  not  see 
the  objection.  The  settlement  made  on 
the  wife  may  have  been  intended  to  con- 
tinue at  all  events  as  an  allowance  in 
the  nature  of  pin-money.  At  least,  I 
cannot  say  that  a  deed  like  this  becomes 
altogether  void  on  a  reconciliation.  It 
would  be  contrary  to  the  express  pro- 
vision of  the  deed,  inserted,  perhaps,  in 
contemplation  that  the  wife  might,  un- 
der some  circumstances,  choose  rather 
to  live  with  her  husband  again,  enjoying 
the  annuity  settled  upon  her,  than  to 
continue  separate." 


[311] 


3or 


THE   LAW    OF    CONTRACTS. 


[book  I. 


pressly  to  be  paid  during  the  continuance  of  a  separation 
by  mutual  consent,  and  the  husband  forfeits  his  marital 
rights  by  his  own  misconduct,  he  can  no  longer  put  an  end 
to  the  separation,  nor  to  his  obligation  to  pay  the  annuity,  (j) 
And  if  such  agreement  to  pay  an  annuity  do  not  expressly 
except  adultery  on  her  part,  neither  that  nor  a  divorce  be- 
cause of  it  would  discharge  his  obligation,  (/i-)  But  it  must 
*be  remembered  that  such  divorce  in  England  would  be  only 
(unless  by  act  of  Parliament,)  a  mensa  et  thoro ;  whereas  in 
this  country  it  would  be  a  vinculo,  and  thus  might  perhaps 
put  an  end  to  such  obligation. 

If,  upon  such  separation,  property  has  been  settled  on  the 
wife  and  children  for  their  support,  it  would  be  upheld  against 
subsequent  creditors,  unless  the  settlement  were  shown  to  be 
without  good  faith.  (/) 

If  there  be  separation  by  consent,  and-  a  specific  sum  set- 
tled upon  the  wife,  which  is  reasonably  sufficient  for  her  ne- 
cessities, then  the  husband  is  not  liable  for  necessaries  sup- 
plied  to   her.  [m)     Nor  is  he  so  liable  even  if  the  party  so 


(j)  Whoregood  v.  Whoregood,  1  Ch. 
Cas.  250. 

(k)  Baynon  v.  Batlev,  8  Bins.  256  ; 
Jce  V.  Thurlow,  2  B."&  C.  547.  By 
deed  of  three  parts  between  husband 
and  wife  and  trustee,  reciting  that  differ- 
ences existed,  and  that  the  husband  and 
wife  had  agreed  to  live  separate,  the 
husband  covenanted  to  pay  an  annuity 
to  the  wife,  during  so  much  of  her  life 
as  he  should  live,  and  the  trustee  cove- 
nanted to  indemnify  the  husband  against 
the  wife's  debts,  and  that  she  shoiUd  re- 
lease all  claim  of  jointure,  dower,  and 
thirds.  Held,  that  this  deed  was  legal 
and  binding,  and  tiiat  a  plea  by  the  hus- 
band that  the  wife  sued  in  the  Ecclesias- 
tical Court  for  restitution  of  conjugal 
rights,  and  that  he  put  in  an  allegation 
and  exhibits,  charging  her  with  adul- 
tery, and  that  a  decree  of  divorce  avien- 
sa  d  thowwas  in  that  cause  pronounced, 
was  not  a  sufficient  answer  to  an  action 
by  the  trustee  for  arrears  of  the  annu- 
ity. Abbott,  C.  J.  "  The  only  question 
is  upon  the  sufiiciency  of  the  plea.  It 
has  been  decided  that  a  plea  stating  the 
commission  of  adultery  by  the  wife  is 
not  sufficient,  upon  this  ground,  that  if 
the  husband,  when   executing   such   a 

[312] 


deed  as  this,  thinks  proper  to  enter  into 
an  unqualified  covenant  ho  must  be 
bound  by  it.  Had  he  wished  to  make 
the  non-commission  of  adultery  a  con- 
dition of  paying  the  annuity  to  his  wife, 
he  should  have  covenanted  to  pay  it 
quam  diu  casta  vixerit." 

(I)  Hobbs  V.  Hull,  1  Cox,  445 ;  Ste- 
phens r.  Olive,  2  Brown,  C.  C.  91  : 
Nunn  V.  Wilsmorc,  8  T.  R.  521. 

(m)  Angier  v.  Angier,  Gilb.  Eq.  E. 
152;  Stephens  v.  Olive,  2  Bro.  C.  C. 
90;  Todd  v.  Stokes,  1  Salk.  116,  1  Ld. 
Eayni.  444.  This  allowance  must  be 
reasonably  sufficient  for  the  wife  to  the 
satisfaction  of  a  jury  ;  and  the  mere 
acquiescence  on  the  part  of  the  wife  in 
the  sum  paid  will  not  necessarily  exo- 
nerate the  husband.  Hodgkinson  v. 
Fletcher,  4  Camp.  70;  Liddlow  v.  Wil- 
mot,  2  Starkie.  87  ;  Emmett  v.  Norton, 
8  C.  &  P.  506.  The  sum  stipulated  by 
the  husband  must  have  been  acttialli/ 
paid,  or  the  husband  is  not  discharged, 
and  the  wife  is  not  driven  to  her  remedy 
on  the  instrument  of  separation,  but 
may  bind  her  husband  on  licr  contracts. 
Nui-se  V.  Craig,  5  B.  &  1\  148  ;  Hunt  r. 
Dc  Blaquiere,  5  Bing.  550. 


CH.  XVII.] 


MARRIED   "WOMEN. 


^302 


furnishing  goods  did  not  know  of  the  provision  made  for  the 
wife ;  unless  this  party  had  supplied  her  before,  and  the  sepa- 
ration was  recent  and  not  notorious  ;  (n)  the  fact  of  separa- 
tion, if  he  knew  it,  was  enough  to  put  him  upon  inquiry. 
But  the  party  supplying  necessaries  to  a  separated  wife  is 
*  not  bound  to  show  that  no  provision  is  made  for  her ;  if  the 
husband  undertakes  to  relieve  himself  from  his  liability  by 
the  fact  of  such  provision,  the  burden  of  proving  it  lies  on 
him  ;  (o)  and  if  it  be  inadequate,  or  not  duly  paid,  he  is  lia- 
ble, (p)  But  he  is  not  liable,  even  if  the  separation  were  not 
by  deed,  and  there  is  no  written  agreement  between  them  as 
to  the  allowance,  if  it  be  in  fact  paid  to  her.  (q)     And  he  is  also 


(n)  In  Eawlyns  v.  Van  Dyke,  3  Esp. 
250,  Lord   Eldoii  is  reported  to  have 
held,    that   in   cases  of  separation   be- 
tween man  and  wife,  if  the  tradesman's 
demand  is  for  necessaries,  it  is  incum- 
bent on  the  husband,   in  order  to  dis- 
charge himself,  to  show  that  the  trades- 
man had  notice  of  the  separation.     But 
this  doctrine  was  directly  repudiated  in 
the  late  case  of  Mizen  v.  Pick,  3  M.  & 
W.  481,  and  Aldersoii,  B.,  there  said:  — 
"  I  do  not  see  how  notice  to  the  trades- 
man can  be  material.     The  question  in 
all  these  cases  is  one  of  authority.     If  a 
wife,  living  separate  from  her  husband, 
is  supplied  by  him  with  sufhcient  funds 
to  support   liersclf — with  every  thing 
proper  for  her  maintenance  and  support, 
then  she  is  not  his  agent  to  jdedge  his 
credit,   and  lie  is  not   liable."     It  has 
likewise  been  held  in  this  country  that 
if  the  tradesman  was  not  accustomed  to 
trust  the  wife  before  separation,  neither 
express  notice  nor  general  notoriety  of 
the  fact  of  separation  is  necessary  to  dis- 
charge the  husband.     Cany  i\  Patton,  2 
Ashm.  140.     And  see  Baker  v.  Barney, 
8  Johns.  72  ;  Mott  v.  Comstock,  8  Wend. 
544 ;  Wilson  v.  Smyth,  1  B.  &  Ad.  801. 
(o)  See   Frost   v.  Willis,    13   Verm. 
202 ;  Eumney  v.  Keyes,  7  New  Hamp. 
571 ;  Clancy  on  Husband  and  Wife,  28. 
But  in  Mott  V.  Comstock,  8  Wend.  544, 
it  was  lu'ld  tliat  if  a  husband  professes 
to  provide  for  his  wife,  who  lives  apart 
from  him,  it  is  incumbent  upon  a  party 
who  has  been  expresdi/  forbidden  to  give  her 
credit  to  show  clearly  and  affirmatively 
that  the   husband   did   not  supply   her 
with  necessaries  suitable  to  her  condi- 
tion, before  he  can  charge  him  for  sup- 


VOL.  I. 


27 


plies  furnished  her ;  and  this  seems  to 
be  the  better  law.  Ijut  in  McClallen  v. 
Adams,  19  Pick.  333,  where  the  wife 
of  the  defendant,  being  afflicted  with  a 
dangerous  disease,  was  carried  by  him 
to  a  distance  from  his  residence,  and 
left  under  the  care  of  the  plaintiff  as  a 
surgeon,  and  after  the  lapse  of  some 
weeks  the  plaintiff  performed  an  opera- 
tion on  her  for  the  cure  of  the  disease, 
soon  after  which  she  died,  it  was  held, 
in  an  action  by  the  plaintiff  against  the 
defendant,  to  recover  compensation  for 
his  services,  that  the  performance  of  the 
operation  was  within  the  scope  of  the 
plaintiff's  authority,  if  in  his  judgment 
it  was  necessary  or  expedient,  and  that 
it  was  not  incumbent  on  him  to  prove 
that  it  was  necessary  or  proper  under 
the  circumstances,  or  tliat  before  he 
performed  it  he  gave  notice  to  the  de- 
fendant, or  that  it  would  have  been 
dangerous  to  the  wife  to  wait  until  no- 
tice could  be  given  to  the  defendant.  • 

(/;)  Ilodgkinson  v.  Fletcher,  4  Camp. 
70  ;  Liddlow  v.  Wilmot,  2  Starkie,  87  ; 
Emmet  v.  Norton,  8  C.  &  P,  506  ; 
Hunt  V.  De  Blaqniere,  5  Bing.  550. — 
It  has  been  held  that  notwithstanding 
the  husband  pay  the  wife  a  sufficient 
allowance,  yet  if  he  expressly  promise  to 
pay  the  debts  she  has  contracted  during 
such  separation,  he  is  bound  by  such 
promise.  Harrison  v.  Hall,  1  Mood.  & 
Hob.  185;  Hornbuekle  v.  Hornbury,  2 
Starkie,  177.  But  these  cases  seem  cer- 
tainly very  anomalous,  and  difficult  to 
he  supported,  since  if  the  allowance  was 
duly  paid,  and  vras  adequate,  the  hus- 
band's promise  would  be  nudum  parium. 

(7)  No  deed  of  separation  is  actually 

[313] 


303' 


THE   LAW   OF   CONTRACTS. 


BOOK   I. 


under  no  liability  if  sufficient  necessaries  be  provided  for  her 
by  another  person,  and  none  by  him.  (r)  The  rule  of  law  is, 
that  if  a  wife  be  separated  from  her  husband,  with  her  con- 
sent, he  is  liable  for  necessaries  supplied  to  her  only  where 
in  fact  she  has  no  other  means  of  obtaining  them.  But 
under  any  circumstances  of  separation,  the  husband  may  be 
*  held  to  answer  to  articles  of  the  peace  against  him,  if  occa- 
sioned by  his  violent  conduct  towards  her,  (s)  and  even 
held  liable  to  pay  the  bill  of  the  attorney  whom  she  employs 
for  that  purpose,  (t)     But  he  has  been  held  not  liable  to  pay 


necessiiry ;  it  is  sufficient  if  a  separation 
actually  took  place.  Hodgkinson  v. 
Fletcher,  4  Camp.  70  ;  Emery  v.  Neigh- 
bour, 2  Halst.  142  :  Lockwood  v.  Tho- 
mas, 12  Johns.  248;  Kimball  v.  Keyes, 
11  Wend.  33.  But  if  the  separate  main- 
tenance be  secured  by  deed,  it  is  held 
that  the  deed  is  void  unless  executed  by 
a  trustee  on  tiie  part  of  the  wife.  Ewers 
V.  Hiitton,  3  Esp.  2.55. 

(r)  It  is  immaterial  from  what  source 
the  wife's  provision  comes,  provided  it 
be  sufficient  and  permanent.  Liddlow 
V.  Wihnot,  2  Starkie,  86  ;  and  see  Dix- 
on V.  Hurrell,  8  C.  &  P.  717.  The  case 
of  Thompson  r.  Hervey,  4  Burr.  2177, 
sometimes  cited  as  deciding  that  the 
provision  must  be  derived  from  the  hus- 
band in  order  to  discharge  him,  seems 
to  have  proceeded  rather  on  the  ground 
that  the  provision  was  purely  voluntary, 
and  during  the  pleasure  of  the  grantor, 
and  therefore  that  creditors  could  not 
be  supposed  to  relv  upon  it. 

(s)  Turner  v.  Kookes,  10  Ad.  &  El. 
47.  This  was  an  action  of  assumpsit  to 
recover  for  services  rendered  by  the 
plaintiff,  as  solicitor,  to  the  defendant's 
wife,  in  exhilnting  articles  of  the  peace 
against  the  defendant.  It  appeared  that 
the  defendant  and  his  wife  had  been 
separated  for  seven  years,  she  living 
upon  a  maintenance  of  .£112  per  an- 
num, which  the  defendant  had  secured 
to  her  by  deed.  The  cause  of  separa- 
tion did  not  appear.  It  further  appear- 
ed that  the  defendant  had  used  such 
threats  and  violence  against  his  wife  as 
authorized  her  to  exhibit  articles  of  the 
peace  against  him.  It  was  held  that  the 
plaintifi"  was  entitled  to  recover. 

(t)  Shepherd   v.   Mackoul,   3  Camp. 

326.     But  this  was  on  the  ground  that 

in  that  particular    case   the   step   was 

actually  necessary  on  the  part  of  the 

[314] 


wife.  And  see  preceding  note.  In 
Shelton  v.  Pendleton,  18  Conn.  417, 
where  A.,  the  wife  of  B.,  without  his 
assent  in  fact,  employed  C,  an  attorney 
and  counsellor  at  law,  to  prosecute,  on 
A.'s  behalf,  a  petition  to  the  superior 
court  against  B.,  for  a  divorce  from  him, 
for  a  legal  and  sufficient  cause,  with  a 
prayer  for  alimony,  and  the  custody  of 
the  minor  children,  and  C.  performed 
services  and  made  disbursements,  in  the 
prosecution  of  such  petition,  which  was 
full}'  granted  and  thereupon  brought 
his  action  against  B.  for  a  reasonable 
remuneration  ;  it  was  held,  1st,  that 
the  facts  in  the  case  showed  that  C. 
looked  for  payment  and  gave  credit  to 
A.  alone;  2d,  that  the  services  and  dis- 
bursements in  question  were  not  neces- 
saries, for  which  B.  as  the  husband  of 
A.  was  liable ;  3d,  that  C.'s  claim  de- 
rived no  strength  from  the  fact  that  to 
the  petition  for  a  divorce  was  appended 
a  prayer  for  alimony  and  the  custody  of 
the  minor  children ;  4th,  that  conse- 
quently C.  was  not  entitled  to  recover. 
Church,  C.  J.,  commenting  on  the  case 
of  Shepherd  v.  Mackoul,  said  :  —  "  The 
common  law  defines  necessaries  to  con- 
sist only  of  necessary  food,  drink, 
clothing,  washing,  physic,  instruction, 
and  a  competent  place  of  residence. 
And  we  know  of  no  case  which  has 
professed  to  extend  the  catalogue  of 
necessaries,  unless  it  be  Shepherd  v. 
IMackoul,  3  Camp.  326.  That  was  an 
action  by  an  attorney  to  recover  of  a 
husband  a  bill  for  assisting  his  wife  to 
exhibit  articles  of  the  peace  against  him. 
And  Lord  EUenborough  said,  that  the 
defendant's  liability  would  depend  upon 
the  necessity  of  the  measure ;  and  if 
that  existed  slie  might  charge  her  hus- 
band for  thenecessary  expense,  as  much 
as  for  necessary  food  or  raiment.     It  is 


CH.  XVII.] 


MARRIED   WOMEN. 


304 


the  bill  of  an  attorney  whom  she  employs  to  procure  an  in- 
dictment of  him.  (u) 

A  liability,  very  similar  to  that  which  falls  upon  one  who 
is  legally  a  husband,  rests  also  upon  him  who  lives  with  a 
woman  as  his  wife,  who  is  not  so.  If  he  holds  her  out  to 
the  public  as  his  wife,  then  he  promises  the  public  that  he 
will  be  as  responsible  for  her  as  if  she  were  so.  (v)  Hence 
he  is  liable,  as  for  his  wife,  to  a  tradesman  who  knew  that 
they  were  not  married,  (iv)  The  ground  of  his  liability  is 
not  that  he  deceived  persons  into  an  erroneous  belief  that 
she  was  his  wife,  but  that  after  voluntarily  treating  her  as 
such,  and  so  inducing  persons  to  believe  that  he  would  con- 
tinue to  treat  her  as  such,  he  cannot  recede  from  the  lia- 
bilities which  he  thus  assumes.  But  this  liability  ceases 
with  cohabitation  ;  he  is  not  responsible  for  necessaries  sup- 
plied to  her  afterwards,  even  where  they  had  lived  together  a 
long  time,  and  she  had  left  him  because  of  his  ill  conduct,  (x) 


manifest  that  the  court  considered  that 
case  as  falling  literally  within  the  esta- 
blished doctrine  of  the  common  law  on 
this  subject  —  the  necessity  of  preserving 
the  life  and  health  of  the  wife.  The 
duty  of  providing  necessaries  for  the 
wife  is  strictly  marital,  and  is  imposed 
by  the  common  law,  in  reference  only 
to  a  state  of  coverture,  and  not  of  di- 
vorce. By  that  law  a  valid  contract  of 
marriage  was  and  is  indissoluble,  and 
therefore  by  it  the  husband  could  never 
have  been  placed  under  oljHgation  to 
provide  for  the  expenses  of  its  dissolu- 
tion. Sucli  an  event  was  a  legal  impos- 
sibility. Necessaries  are  to  be  provided 
by  a  husband  for  his  wife,  to  sustain  her 
as  his  wife,  and  not  to  provide  for  her 
future  condition  as  a  single  woman,  or 
perhaps  as  the  wife  of  another  man.  It 
was  on  this  principle  that  the  aforesaid 
case  of  Shepherd  v.  Mackoul  was  de- 
cided ;  and  the  latter  case  of  Ladd  v. 
Lynn,  2  M.  &  W.  265,  in  which  it  was 
holden  that  a  husband  was  not  liable 
for  expenses  incurred  by  the  wife  in  pro- 
curing a  deed  of  separation,  proceeded 
upon  the  same  principle." 

(u)  Because  that  is  not  necessary. 
Grindell  v.  Godmond,  5  Ad.  &  El.  753. 
Nor  for  the  counterpart  of  the  deed  of 
separation,  procured  by  the  wife's  trus- 
tee, unless  he  expressly  promise  to  pay. 
Ladd  V.  Lynn,  2  RI.  &  W.  205.    Nor  is 


a  husband  liable  to  an  attorney  for  pro- 
fessional services  rendered  to  the  wife 
in  defending  against  his  petition  for  a 
divorce  for  her  fault,  nor  on  her  petition 
against  him  for  his.  Wing  v.  Hurlburt, 
15  Verm.  607;  Uorsey  v.  Goodenow, 
Wright,  120.  And  see  Shelton  v.  Pen- 
dleton, cited  in  the  preceding  note.  Nor 
is  the  woman  herself  liable,  unless  she 
expressly  promise  to  pay  them,  after 
the  divorce.  Wilson  ??.  Burr,  25  Wend. 
386.  If  there  is  evidence  of  an  express 
agreement  to  pay  such  bills,  the  husband 
may  then  be  liable.  Williams  v.  Fowler, 
1  McC.  &  Y.  269. 

((•)  Watson  V.  Threlkeld,  2  Esp.  637  ; 
Robinson  v.  Nahon,  1  Camp.  245  ; 
Blades  v.  Free,  9  B.  &  C.  167;  Munro 
V.  De  Chemant,  4  Camp,  215  ;  Carr  v. 
King,  12  Mod.  372  ;  Graham  v.  Brettlc, 
18  Law  Times  Reps.  185. 

(jv)  Watson  i-.  Threlkeld,  2  Esp.  637  ; 
Robinson  v.  Nahon.  1  Camp.  245  ;  Ry- 
an v.  Sams,  12  Q.  B.  460. 

(x)  Munro  v-  De  Chemant,  4  Camp. 
215.  But  in  Ryan  i'.  Sams,  12  Q.  B. 
460,  the  facts  were  that  the  defendant 
and  a  Mrs.  S.,  his  mistress,  lived  toge- 
ther as  husband  and  wife  four  years, 
and  occupied  three  residences  succes- 
sively. At  each  time  of  their  coming 
into  a  house,  plaintiff  was  employed  to 
do  work  and  furnish  materials  for  the 
fitting  up.  Mrs.  S.  as  well  as  the  de- 
[315] 


305 


THE  LAW  OF   CONTRACTS. 


BOOK  I. 


Proof  of  cohabitation  seems  to  be  sufficient  primd  facie 
evidence  in  an  action  against  husband  and  wife  for  her  debt 
before  marriage.  (?/) 

In  England  it  has  been  decided,  that  if  a  marriage  has 
taken  place  de  facto,  the  husband  cannot  defend  against  an 
action  brought  on  promises  made  by  the  wife  before  cover- 
ture, by  showing  that  the  marriage  was  illegal,  and  therefore 
void,  because  only  the  spiritual  courts  can  take  cognizance 
of  such  questions,  (s)  But  in  this  country,  as  we  have  no 
such  courts,  the  defence  could  not  be  objected  to  on  these 
grounds. 

In  England,  a  married  woman,  trading  independently  of 
her  husband  within  the  city  of  London,  may,  by  the  "  custom 
of  London,"  sue  and  be  sued  as  a  feme  sole,  with  reference 
to  such  dealings  of  trade,  (a)     But  even  there  the  husband 


fendant  gave  directions  ;  and  the  de- 
fendant sanctioned  her  orders  and  paid 
the  bills.  Plaintiff  knew  that  slie  was 
only  his  mistress.  While  residinc;  in 
the_third  house  they  separated  :  but  Mrs. 
S.,  without  defendant's  sanction,  sent 
for  plaintiff  to  that  house,  which  she  liad 
not  yet_left,  and  ordered  fittings  up,  for 
a  new  house  of  iier  own.  Plaintiff  did 
the  work,  and  had  not,  in  the  mean 
time,  any  notice  of  the  separation. 
Held,  in  an  action  for  the  last-mentioned 
work  and  goods,  that  it  was  a  proper 
question  for  the  jury  whether  or  not  the 
defendant  had  given  the  plaintiff  reason 
to  believe  that  Mrs.  S.,  at  the  time  of 
the  orders,  continued  to  be  defendant's 
agent;  and  that,  on  their  finding  in  the 
affirmative,  the  defendant  v.-as  liable. 
Lord  Denman,  C.  J.  "  In  Munro  v.  De 
Chemant,  4  Camp.  215,  it  may  be  pre- 
sumed that  the  parties  had  lived  long 
separate';  and  it  is  consistent  with  the 
statement  there  that  Lord  EUenborough 
may  have  noticed  that  circumstance  as 
important  if  the  parties  were  not  mar- 
ried, but  told  the  jury,  '  if  you  think 
they  are  proved  to  have  been  man  and 
wife  the  case  will  be  different.'  And 
the  order  there  seems  to  have  com- 
menced a  new  account.  Here  the  de- 
fendant^ sanctions  orders  to  the  plaintiff 
in  the  name  of  Stanley,  while  the  person 
in  question  is  living  with  him  under 
that  name,  and  she  afterwards  gives 
orders  to  the  plaintiff  in  the  same  name, 
circumstances  apparently  continuing  un- 
[316] 


altered.  It  would  be  unreasonable  to 
expect  more  evMence  in  such  a  case." 
And  in  Blades  v.  Free,  9  B.  &  C.  167, 
where  a  man  who  had  for  some  years 
cohabited  with  a  woman  that  passed  for 
his  wife,  went  abroad,  leaving  her  and 
her  family  at  his  residence  in  this  coun- 
try, and  died  abroad,  it  was  held,  that  the 
woman  might  have  the  same  authority 
to  bind  him  by  her  contracts  for  neces- 
saries as  if  she  had  been  his  wife  ;  but 
that  his  executor  was  not  bound  to  pay 
for  any  goods  supplied  to  her  after  his 
death,  although  before  information  of^ 
his  death  had  been  received. 

(y)  Tracey  v.  McArlton,  7  Dowl.  P. 
C.  532.  And  see  Norwood  v.  Steven- 
son, Andrews,  11.  227.  But  to  be  liable 
for  the  wife's  torts  committed  before  co- 
verture, a  marriage  de  facto  is  not  suffi- 
cient ;  and  a  man  with  whom  a  woman 
already  married  contracts  matrimony, 
her  first  and  lawful  husband  still  living, 
is  not  responsible  for  her  torts  commit- 
ted before  coverture.  Overholt  v.  Ells- 
well,  1  Ashm.  200.  And  the  same 
reasoning  would  seem  to  apply  to  her 
debts  contracted  before  coverture.  And 
a  husband  is  not  liable  for  the  debts  of 
his  wife  diim  sola,  unless  the  wife  herself 
was  liable  for  them  at  the  time  of  her 
marriage.  Caldwell  v.  Drake,  4  J.  J. 
Marsh.  247. 

(s)  Norwood  V.  Stevenson,  Andrews, 
227. 

(a)  Bac.  Abr.  Baron  and  Feme, 
(M.) 


CH.  XVII.] 


MARRIED   WOMEN. 


*306 


should  be  made  a  party  to  the  suit,  (b)  though  she  will  be 
treated  as  the  substantial  party.  Elsewhere  in  England  she 
can  act  as  a  single  woman  only  when  the  legal  existence  of 
her  husband  may  be  considered  as  extinguished,  wholly  or 
for  a  definite  period ;  as  in  case  of  outlawry,  abjuration  of 
the  realm,  or  transportation  *  for  life,  or  for  a  limited  term,  (c) 
In  this  country,  however,  in  part  by  statute,  as  in  Pennsyl- 
vania and  South  Carolina,  (d)  and  in  part  by  the  decisions 
of  the  courts,  the  law  is  much  more  reasonable,  and  a  mar- 
ried woman  may  act  as  if  unmarried,  under  many  circum- 
stances ;  as  for  continued  abandonment,  (e)    alienage,  and 


(b)  Caudell  v.  Shaw.  4  T.  R.  361  ; 
Beard  v.  Webb,  2  B.  &  P.  93  ;  Starr  v. 
Taylor,  4  McCord,  413;  Laughan  v. 
Bewctt,  Cro.  Car.   68. 

(c)  Marshall  v.  Riitton,  8  T.  R.  545. 
And  a  married  woman  cannot  there  be 
sued  on  her  contracts,  although  she  live 
apart  from  her  husband  in  a  state  of 
adultery,  and  there  exist  a  valid  divorce 
a  mensa  et  thoro,  and  she  contract  during 
such  separation  in  the  assumed  charac- 
ter of  a  single  woman.  Lewis  v.  Lee, 
3  B.  &  C.  291,  5D.  &  R.  98;  Faithorne 
V.  Blaquire,  6  M.  &  S.  73 ;  Turtle  v. 
Worsley,  3  Doug.  290.  But  see  Cox 
V.  Kitchin,  1  B.  &  P.  338.  Neither  is 
her  personal  representative  liable  under 
such  circumstances,  although  he  have 
abundant  assets.  Clayton  v.  Adams,  6 
T.  R.  604.  But  if  the  legal  existence 
of  the  husband  is  considered  as  extin- 
guished, the  wife  may  contract  as  a 
feme  sole.  Lady  Belknap's  case,  Year 
Book,  1  Hen.  4,  1,  a ;  Lean  v.  Shutz,  2 
Bl.  1197;  Marsh  v.  Hutchinson,  1  B.  & 
P.  231  :  Ex  parte  Franks,  7  Bing.  762, 

1  M.  &  Scott,  1  ;  Carrol  v.  Bleneow,  4 
Esp.  27 ;  Stretton  v.  Busnach,  1  Bing. 
N.  C.  140. 

(d)  In  Pennsylvania  and  South  Ca- 
rolina a  wife  may  become  a  sole  trader, 
and  become  liable  as  such,  in  imitation 
of  the  custom  of  London.  Starr  v. 
Taylor,  4  McCord,  413  ;  Newbiegiu  v. 
Pillans,  2Bay,  162;  McDowall  w.^'Wood, 

2  N.  &  McC.  242 ;  Burke  v.  Winkle,  2 
S.  &  R.  189;  Jacobs  v.  Featherstone,  6 
W.  &  S.  346.  She  must,  however,  in 
order  to  have  the  privilege  of  contract- 
ing as  a  feme  sole,  be  technically  a 
trader.  McDaniel  v.  Cornwell,  1  Hill, 
(So.  Car.)  428.  The  privilege  does  not 
extend  to  a  woman  who  is  a  common 

27* 


carrier.  Ewart  v.  Nagel,  1  McMullan, 
50.  Nor  to  one  who  was  separated 
from  her  husband,  and  supported  her- 
self by  her  daily  labor.  Robards  v. 
Hutson,  3  McCord,  475.  Keeping  a 
shop  as  a  milliner  brings  her  within  the 
privilege.  Surtell  v.  Brailsford,  2  Bay, 
333.  But  her  privilege  to  contract  as 
a  feme  sole  extends  no  fiirther  than  to 
such  contracts  as  are  connected  with  her 
trade.  McDowall  v.  Wood,  2  N.  & 
JMcC.  242.  And  see  Wallace  v.  Rippon, 
2  Bay,  112. 

(e)  If  the  husband  is  banished,  then, 
as  we  have  seen,  by  the  laws  of  England 
and  of  this  country,  a  wife  may  con- 
tract as  a  feme  sole.    AVright  v.  Wright, 

2  Des.  244.  And  the  law  is  the  same 
whether  he  is  banished  for  his  ci-imes, 
or  has  voluntarily  abandoned  his  wife. 
Rhea  v.  Rhenner,  1  Peters,  105.  The 
voluntary  absence  of  the  husband,  how- 
ever, must  be  more  than  temporary  in 
order  to  have  this  effect.  Robinson  v. 
Reynolds,  1  Aikens,  174  ;  Gregory  v. 
Pierce,  4  Met.  478 ;  Commonwealth  v. 
Collins,  1  Mass.  116  ;  Chouteau  v. 
Merry,  3  Missouri,  254.  If  it  amount 
to  absolute  and  complete  desertion, 
then  it  may  be  sufficient.  Cases  supra. 
Whether  the  imprisonment  of  the  hus- 
band for  life,  or  a  term  of  years,  in 
our  State  prisons,  will  have  the  same 
effect,  is  more  doubtful.  Sec  21  Am. 
Jur.  8 ;  1  Swift's  Dig.  36  ;  Cornwall  v. 
Hoyt,  7  Conn.  427.  If  the  husband  is 
an  alien,  and  never  resided  in  this  coun- 
try, the  wife  may  sue  and  be  sued  as  a 
feme  sole.     Kay  r.  Duchess  de  Picunc, 

3  Camp.  123;  Deerly  v.  Mazarine,  1 
Salk.  116  ;  Robinson  v.  Reynolds,  1  Aik. 
174;  De  Gaillon  v.  L'Aiglc,  1  B.  &  P. 
356,  compared  with  Farrcr  v.  Granard, 

[317] 


-306  THE   LAAV   OF   CONTRACTS.  [BOOK    I. 

non-residence,  or  the  privity  and  acquiescence  of  the  husband, 
although  not  expressed  by  deed.  (/) 

4  B.  &  P.  80.    But  this  rule  is  qualified  sole,  or  the  plaintifF  has  knowledge  of 

in  Bardcn  v.  Kcverberg,  2  M.  &  W.  Gl,  the  fiicts. 

in  which  it  is  held  that  she  is  responsible        (/)  McGrath  v.  Robertson,  1  Des. 

only  if  she  represents  herself  as  a  feme  445. 

[318] 


CHAP.   XVIII.]  BANKRUPTS  AND  INSOLVENTS.  307 


CHAPTER  XVIII. 


BANKRUPTS   AND  INSOLVENTS. 


At  this  time  we  have  in  this  country  no  national  law  of 
bankruptcy.  In  the  several  States  there  are  insolvent  laws, 
which  more  or  less  approach  the  character  of  a  bankrupt 
law.  These  laws  are  very  various,  and  seldom  remain  long 
without  change.  Nor  would  it  be  well  to  occupy  many 
pages  of  this  volume  with  details  of  their  various  provisions, 
as  at  this  moment  established.  We  shall  only  attempt  to 
state  the  general  principles  which  apply  to  the  contracts  of 
parties  whose  property  has  passed  from  their  hands  for  the 
purpose  of  being  divided  among  their  creditors. 

Between  a  bankrupt  law  and  an  insolvent  law  there  does 
not  appear  to  be  any  established  and  well-settled  distinction. 
It  may  be  essential  to  a  bankrupt  law,  that,  on  the  one  hand, 
any  trader,  when  it  becomes  certain  that  he  cannot  pay  his 
debts,  should  be  compelled  by  it  to  surrender  his  property  for 
their  payment  as  far  as  it  will  go ;  and,  on  the  other,  that 
such  debtor  may  then  have  a  discharge  from  his  liabilities,  if 
he  has  not  forfeited  his  right  to  this  discharge  by  misconduct. 
But  an  insolvent  law  is  sometimes  said  to  differ  in  theory 
from  a  bankrupt  law  in  this,  that  it  does  not  proceed  in  refer- 
ence to  a  debtor  against  his  will,  but  provides  means  where- 
by he  may  distribute  his  effects  equally,  and  then  obtain  a 
discharge.  If  this  distinction  exists,  it  is  not  always  ob- 
served ;  and  sometimes  it  seems  rather  to  be  held  that  while 
a  bankrupt  law  discharges  the  debt,  an  insolvent  law  only 
relieves  from  imprisonment.  This  is  certainly  the  case  in 
many  of  our  States. 

In  this  country  the  great  questions  which  have  occasioned 
much  difficulty  have  sprung  from  the  clause  in  the  Consti- 
tution of  the  United  States,  prohibiting  the  several  States 

[319] 


808 


THE   LAW   OF   CONTRACTS. 


[book  I. 


from  passing  any  law  "impairing  the  obligation  of  contracts." 
But  these  questions,  and  those  which  arise  from  the  operation 
of  bankrupt  and  insolvent  laws  on  contracts,  will  be  examined 
in  the  Second  Part  of  this  work,  in  which  contracts  will  be 
considered  in  reference  to  the  operation  of  law  upon  them. 

It  is  so  far  acknowledged  that  a  discharged  bankrupt  or 
insolvent  still  lies  under  a  moral  obligation  to  pay  his  debts 
in  full,  when  he  can,  that  this  obligation  is,  at  common  law, 
a  sufficient  consideration  to  sustain  an  actual  promise  to  do 
so.  (g-)  This  promise,  however,  must  be  distinct  and  speci- 
fic, (h)  and  it  has  been  held  that  the  payment  of  interest,  or 
even  payment  of  part  of  the  principal  and  its  indorsement  on 
the  note  by  the  debtor  himself  is  not  sufficient  to  warrant  a 
jury  in  finding  a  new  promise  to  pay  the  whole  debt,  {hh) 
Where  such  promise  is  made,  it  does  not  seem  to  be  neces- 
sary to  declare  upon  it  as  the  foundation  of  a  suit,  but  an 
action  may  be  brought  upon  the  old  promise,  and  the  new 
promise  will  .have  the  effect  of  doing  away  the  obstruction 
otherwise  interposed  by  the  bankruptcy  and  discharge,  (i) 

(g)  Scouton  i'.  Eislord,  7  Johns.  36  ; 
rieming;  v.  Hayne,  1  Starkie,  370  ;  Free- 
man V.  Fenton,  1  Cowp.  544;  Twiss  v. 
Massey,  1  Atk.  67 ;  Ex  parte  Burton, 
Id.  255  ;  Birch  v.  Sharland,  1  T.  R. 
715 :  Besford  v.  Saunders,  2  H.  Bl.  116; 
Brix  r.  Braham,  8  Moore,  261,  1  Bing. 
281  ;  Erwin  v.  Saunders,  1  Cow.  249  ; 
Shippey  r.  Henderson,  14  Johns.  178; 
Maxim  v.  Morse,  8  Mass.  127  ;  Way  v. 
Sperry,  6  Cush.  238  ;  Best  r.  Barber,  3 
Doug.  188;  Trumbull  v.  Tilton,  1  Fos- 
ter, 128.  The  promise  should  be  made 
after  the  decree  in  bankruptcy  discharg- 
ing the  debt —  a  promise  made  after  the 
petition  in  bankruptcy  was  filed  merely, 
but  before  the  decree,  is  not  sutficient. 
Stebbins  );.  Shei-man,  1  Sand.  Sup.  Ct. 
510.  In  England,  however,  by  statute 
6  Geo.  4,  c.  16,  a  promise  by  a  bankrupt 
must  be  in  ivriting.  and  signed  by  the 
bankrupt,  or  by  some  person  thereto  by 
him  lawfully  authorized.  —  A  promise 
by  a  debtor' to  pay  a  debt  which  has 
been  voluntarily  released  by  the  creditor 
is  not  binding,  for  want  of  consideration. 
Warren  v.  Whitney,  24  Maine,  561; 
Snevily  i'.  Bead,  9  "Watts,  396.  And 
this  although  the  release  was  given 
without  consideration,  and  merely  to 
enable  the  debtor  to   testify  in   a  suit 


against  the  creditor,  in  which  he  could 
not  have  otherwise  testified  because  of 
a  legal  interest.  Valentine  v.  Foster,  1 
Met.  520.  But  see  Willing  v.  Peters,  12 
S.  &11.  177. 

(h)  It  must  be  an  absolute  and  un- 
conditional promise  to  pay  the  debt. 
Brown  v.  Collier,  8  Humph.  510.  The 
words  -'I  have  always  said,  and  still 
say,  that  she  shall  have  her  pay,"  spoken 
to  an  agent  of  the  creditor,  may  be  con- 
strued by  the  jury  as  an  express  promise 
to  pay.  Pratt  v.  Russell  7  Cush. 
462.  — Mere  statements  to  third  persons 
that  he  had  promised  to  pay  the  debt 
are  not  in  themselves  sufficient.  They 
afford  some  ground  to  raise  the  pre- 
sumption of  a  promise,  but  are  not  such 
in  themselves.  Prewett  v.  Caruthers, 
12  S.  &  M.  491 ;  Yoxtheimer  v.  Keyser, 
11  Penn.  365. 

{hh)  Merriam  v.  Bayley,  1  Cush.  77; 
Cambridge  Institution  for  Savings  v. 
Littleficld,  6  Cush.  210. 

{i)  Williams  r.  Dyde,  Peake,  N.  P. 
68;  Maxim  v.  Morse,  8  Mass.  127; 
Shippey  i\  Henderson,  14  Johns.  178; 
Depuy  V.  Swart,  3  Wend.  135.  —  If  the 
old  debt  was  due  by  note  or  specialty, 
a  parol  promise  merely  will  not  sustain 


[320] 


CH.   XVIII.] 


BANKRUPTS  AND  INSOLVENTS. 


*309 


But  if  the  promise  is  conditional,  then  the  party  seeking  to 
enforce  it  must  show  the  condition  satisfied  ;  as  if  the  debtor 
promised  to  pay  when  he  was  able,  then  the  creditor  must 
prove  his  ability,  (j)  In  such  case,  and  perhaps  in  all,  it 
*  would  be  safer  to  rely  upon  the  new  promise  as  the  ground 
of  the  action,  and  upon  the  old  promise  only  as  the  consider- 
ation for  the  new  one,  (k)  as  in  many  cases  it  has  been  held 
that  the  new  promise  does  not  revive  the  negotiability  of  a 
bill  or  note,  but  binds  the  insolvent  only  to  the  person  to 
whom  the  contract  was  made,  (kk)  The  contrary  has  how- 
ever been  decided,  (kl) 


an  action  on  the  note  or  specialty  itself. 
Graham  v.  Hunt,  8  B.  Monroe,"?. 

0')  Besford  v.  Saunders,  2  H.  Bl. 
116;  Pleming  v.  Hayne,  1  Stark.  370; 
Branch  Bank  v.  Boykin,  9  Ala.  320 ; 
Sconton  I'.  Eislord,  7" Johns.  36;  Bush 
V.  Barnard,  8  Johns.  407. —  So  in  pro- 
mises by  an  adult  to  pay  "when  he  is 
able  "  a  debt  contracted  during  infoncy, 
the  defendant's  ability  to  pay  must  be 
shown.  Penn  v.  Bennett,  4  Camp.  205 ; 
Cole?).  Saxby,  3  Esp.  160;  Davies  i'. 
Smith,  4  Esp.  36  ;  Thompson  v.  Lay,  4 
Pick.  48;  Everson  v.  Carpenter,  17 
Wend.  419.     So  of  a  promise  to  pay  a 


debt  barred  by  the  statute  of  limitations. 
Tanner  v.  Smart,  6  B.  &  C.  603 ;  Hay- 
don  V.  Williams,  7  Bing.  163;  Gould  v. 
Shirley,  2  M.  &  P.  581  ;  Tompkins 
r.  Brown,  1  Denio,  247 ;  Laforge  v. 
Jayne,  9  Penn.  410. 

"(/.•)  Penn  v.  Bennett,  4  Camp.  205  ; 
Fleming  v.  Hayne,  1  Stark.  371  ;  AVait 
V.  Morris,  6  Wend.  394. 

(JcJc)  Depuv  V.  Swart.  3  Wend.  135  ; 
Moore  v.  Viele,  4  Wend.  420 ;  Wal- 
bridge  v.  Harroon,  18  Verm.  448  ;  White 
V.  Cushing,  30  Maine,  267  ;  Graham 
V.  Hunt,  8  B.  Mon.  7. 

{kl)  Way  V.  Sperry,  6  Cush.  238. 

[321] 


310  THE  LAW  OF  CONTRACTS.  [BOOK  I. 


CHAPTER  XIX. 

PERSONS  OP  INSUFFICIENT  MIND  TO  CONTRACT. 

Sect.  I.  —  Non  Compotes  Mentis. 

They  who  have  no  mind,  "  cannot  agree  in  mind"  with 
another ;  and  as  this  is  the  essence  of  a  contract,  they  cannot 
enter  into  a  contract.  But  there  is  more  difficulty  when  we 
consider  the  case  of  those  who  are  of  unsound  mind,  partial- 
ly and  temporarily  ;  and  inquire  how  the  question  may  be 
affected  by  the  cause  of  this  unsoundness. 

It  was  once  held  that  no  man  could  discharge  himself 
from  his  liability  under  a  contract  by  proof  that  when  he 
made  it  he  was  not  of  sound  mind ;  on  the  ground  that  no 
man  should  be  permitted  to  stultify  himself.  (/)  This  is  not 
now  the  law,  either  in  England  or  in  this  country.  If  one 
enters  into  a  contract  while  deprived  of  reason,  and  after- 
wards recovers  his  reason,  he  may  repudiate  that  contract,  [m) 

(I)  Litt.  sect.  405,  406 ;  Beverley's  of  mankind.  And  perhaps  all  expe- 
case,  4  Co.  Eep.  126;  Stroud  v.  Mar-  rience  demonstrates  that  a  mind  may 
shall,  Cro.  El.  398 ;  Cross  r.  Andrews,  be,  in  relation  to  some  one  point,  what 
Id.  622.  But  this  was  contrary  to  the  would  be  called  insane  by  all  persons, 
most  ancient  authorities.  See  2  Bl.  and  yet  on  others  be  judged  to  be  sane, 
Com.  291. — In  Waring  v.  Waring,  12  if  tried  by  any  of  the  tests  usually  ap- 
Jur.  947,  (1848,)  the  nature  and  the  de-  plied  to  this  question, 
grees  of  insanity  are  very  fully  consider-  (m)  In  Gore  v.  Gibson,  13  IM.  &  W. 
ed.  It  is  difficult  to  define  insanity,  or  623,  tlie  action  was  assumpsit  by  the 
to  discriminate  it  precisely  from  mere  indorsee  against  the  indorscr  of  a  bill 
weakness  of  mind,  or  disturbed  imagi-  of  exchange.  The  defendant  pleaded 
nation.  Absolute  sanity  of  mind  may  that  wlien  he  indorsed  the  bill  he  was 
or  may  not  be  predicated  of  any  person,  so  intoxicated  as  to  be  unable  to  com- 
accorciingly  as  we  include  therein  more  prehend  the  meaning,  nature,  or  effect 
or  less  perfect  power  of  thought  and  of  the  indorsement :  of  wliicli  the  plain- 
accuracy  of  judgment.  In  Waring  v.  tiff  at  the  time  of  the  indorsement 
Waring,  Lord  Brougham  holds  that  no  had  notice.  Held  to  be  a  good  answer 
mind  which  is  insane  upon  any  one  to  the  action.  Parke,  B.  "  Where  the 
point  can  be  wholly  sound  on  any  sub-  party,  when  he  enters  into  the  contract, 
ject.  If  by  this  any  thing  more  is  meant  is  in  such  a  state  of  drunkenness  as  not 
than  that  an  unsound  mind  is  not  a  to  know  wliat  he  is  doing,  and  particu- 
sound  one,  the  proposition  is  opposed  larly  wlien  it  appears  that  this  is  known 
to  the  general,  if  not  universal  opinion  to  the  other  party,  the  contract  is  void 

[322] 


CH.  XIX.]    PERSONS  OF  INSUFFICIENT  MIND  TO  CONTRACT.  311 


And  this  although  his  temporary  insanity  was  produced  by  his 
own  act,  as  by  intoxication,  (n)  But  he  must  not  make  use 
of  his  intoxication  as  a  means  of  cheating  others.  If  he  made 
himself  drunk  with  the  intention  of  avoiding  a  contract  entered 
into  by  him  while  in  that  state,  it  may  well  be  doubted  whether 
he  would  be  permitted  to  carry  this  fraud  into  efiect.  And 
if  he  bought  goods  when  drunk,  but  keeps  them  when  sober, 
his  drunkenness  is  no  answer  to  an  action  for  the  purchase- 


altogether,  and  he  cannot  be  compelled 
to  perform  it.  A  person  who  takes  au 
obligation  from  another  under  such  cir- 
cumstances is  guilty  of  actual  fraud.  The 
modern  decisions  have  qualified  the  old 
doctrine,  that  a  man  shall  not  be  allow- 
ed to  allege  his  own  lunacy  or  intoxica- 
tion, and  total  drunkenness  is  now  held 
to  be  a  defence."  See  Mitchell  v.  King- 
man, 5  Pick.  431  ;  Webster  v.  Wood- 
ford, 3  Day,  90 ;  Grant  r.  Thompson, 

4  Conn.  203  ;  Lang  v.  Whidden,2  New 
Hamp.  43,')  :  Seaver  v.  Phelps,  11  Pick. 
304 ;  McCreight  v.  Aiken,  1  Rice,  56 ; 
Yates  V.  Been,  2  Strange,  1 104  ;  Baxter 
V.  Earl  of  Portsmouth,  5  B.  &  C.  170; 
Rice  V.  Pcet,  15  Johns.  503;  O wing's 
case,  1  Bland,  377  ;  Horner  v.  Marshall, 

5  Munf.  406  ;  Fitzgerald  v.  Reed,  9 
Smcdes  &  Mar.  94.  And  an  adminis- 
trator may  avoid  a  contract  by  show- 
ing the  insanity  of  the  testator  at  the 
time  of  making  it.  Lazell  v.  Pinnick,  1 
Tyler,  247. —  So  insanity  is  a  good  de- 
fence to  an  action  of  slander,  and  evi- 
dence that  the  defendant  was  a  weak- 
minded  man,  and  at  times  both  before  and 
after  the  speaking  of  the  words,  totally 
deranged,  is  competent  evidence  in  ascer- 
taining whether  he  was  insane  at  the  time 
of  speaking  them.     Bryant  v.  Jackson, 

6  Humph.  199.  —  And  it  is  no  answer 
that  the  sane  party  when  contracting 
was  not  apprised  of  the  other's  insanity, 
and  did  not  suspect  it,  and  did  not 
overreach  such  insane  person,  or  prac- 
tice any  fraud  or  unfairness  upon  him. 
Seaver  v.  Phelps,  1 1  Pick.  304.  And 
the  dictum  of  Lord  Tenterden  in  Brown 
V.  Joddrcll,  1  Moody  &  Malkin,  105,  to 
the  contrary,  is  inconsistent  with  mo- 
dern decisions.  — Insanity  is  no  defence 
to  an  action  of  trover.  Morse  v.  Craw- 
ford, 17  Verm.  R.  499. 

(")  In  Pitt  r.  Smith,  3  Camp.  33, 
Lord  ElknhoroiKjh  held  that  an  agree- 
ment signed  by  an  intoxicated  man  is 
void,  on  the  ground  that  such  a  person 


"  has  no  agreeing  mind."    And  he  re- 
asserted this  rule  in  Fenton  v.  Hollo- 
way,  1  Stark.  126.     See  Cooke  v.  Clay- 
worth,   18   Ves.   15;  Cole   v.  Robbins, 
Bull.  N.  P.  172;  Barrett  v.  Buxton,  2 
Aikens,  167;   Bunoughs  r.  Richmond, 
1   Green,  233 ;   Foot  v.   Tewksbury,  2 
Verm.  97  ;  Reynolds  v.  Waller,  1  Wash. 
164;    Reinickcr  v.   Smith,   2    Harr.   & 
Johns.  421  ;    Curtis  v.  Hall,  1    South. 
361  ;  Rutherford  v.  Ruff,  4  Desaus.  364, 
Seymour  I'.  Delaney,  3  Cow.  445 ;  Dun- 
can V.  McCullough,  4  S.  &  R.  484 ;  Tay- 
lor V.  Patrick,  1  Bibb,  168  ;  Prentice  v. 
Achorn,  2  Paige,  30 ;  Harrison  v.  Le- 
mon, 3  Blackf  51 ;  Drummond  v.  Hop- 
per, 4  Harring.  327.    And  the  legal  re- 
presentatives  of    a    party   contracting 
while  intoxicated  have  the  same  right 
as  the  party  himself  to  avoid  such  con- 
tract,   although    the   drunkenness   was 
not  procured  by  the  sober  party.     Wig- 
glcsworth  V.  Steers,  1  Hen.  &  Mun.  70. 
It  seems  to  be  held  in  equity  that  in- 
toxication does   not   avoid  a  contract, 
unless  the   intoxication  was  produced 
by  the  other  party,  or  unless  fraud  had 
been  practised  upon  him.    Cory  v.  Cory, 
1  Ves.  Sen.  19;  Johnson  v.  Medlicott, 
3   P.    Wms.    130,   note  ;     Stockley   v. 
Stockley,  1  V.  &  B.  23 ;  Cooke  v.  Chay- 
worth,  18  Ves.  12;  Crane  v.   Couklin, 
Saxton,   346.      Dealing   with    persons 
non  compos   raises    a    presumption    of 
fraud  ;   but  it   may  be   rebutted ;   and 
if  the   evidence  of  good   faith  and  of 
benefit  to  the  unsound  person  is  clear, 
equity    will    not    interfere.      Jones    v. 
Perkins,    5   B.    Monroe,  225.  —  As   to 
frauds   on   drunkards,  sec    Gregory   v. 
Frazcr,  3  Camp.  454  ;  Brandon  v.  Old, 
3  C.  &  P.  440.     Some  of  the  above  au- 
thorities certainly  seem  to  be  inconsist- 
ent with  the  principle,  that  a  person   in 
a  state  of  intoxication  has  no  agreeing 
mind,  and  therefore  there  never  was  a 
contract  lietwccn  tlie  parties.  We  think 
this  piinciple,  however,  the  true  one. 

[323] 


U2 


THE   LAAV   OF   CONTRACTS. 


[book  I. 


money,  (o)  And  if  the  condition  of  lunacy  be  established 
by  proper  evidence  under  proper  process,  the  representatives 
and  guardians  of  the  lunatic  may  avoid  a  contract  entered 
into  by  him  at  a  time  when  he  is  thus  found  to  have  been  a 
lunatic,  although  he  seemed  to  have  his  senses,  and  the  party 
dealing  with  him  did  not  know  him  to  be  of  unsound 
mind.  (/;)  But  this  rule  has  one  important  qualification, 
quite  analogous  to  that  v/hich  prevails  in  the  case  of  an  in- 
fant, and  resting  undoubtedly  on  a  similar  regard  for  the 
interests  of  the  lunatic.  This  is,  that  his  contract  cannot  be 
avoided,  if  bond  fide  on  the  part  of  the  other  party,  and  made 
for  the  procurement  of  necessaries,  [q)  which,  as  in  the  case 
of  infants,  would  not  be  restricted  to  absolute  necessaries, 
but  such  things  as  are  useful  to  him,  and  proper  for  his 
means  and  station.  And  it  has  been  receritly  held,  that  a 
bond  fide  contract  made  with  a  lunatic,  who  was  apparently 
sane,  cannot  be  rescinded  by  him  or  his  representatives,  un- 
less the  parties  can  be  placed  in  statu  quo.  (r) 


(o)  See  Alderson.  B.,  in  Gore  v.  Gib- 
son, 13  M.  &  W.  623.  From  Sentance 
V.  Poole,  3  C.  &  P.  1,  it  might  be  infer- 
red that  an  indorsement,  made  in  a  state 
of  complete  intoxication,  would  not  be 
enforced  against  the  drunkard  by  a  bo7id 
Jide  holder  without  knowledge  of  the 
circumstances.  Such  a  rule  must  rest 
on  the  assumption  that  the  act  was  a 
nullity ;  but  it  is  difficult  to  see  how  one 
could  indorse  a  bill  or  note  in  such  a 
way  that  its  appearance  would  excite 
no  suspicion,  and  yet  be  so  drunk  as  to 
know  nothing  of  what  he  was  doing ; 
and  unless  the  indorser  were  utterly  in- 
capacitated, it  should  seem  that  a  third 
party,  taking  the  note  innocently  and 
for  value,  ought  to  hold  it  against  him. 

(p)  McCrillis  v.  Bartlett,  8  N.  Hamp. 
5G9.  See  Smith  v.  Spooner,  3  Pick. 
229  ;  Manson  v.  Felton,  13  Pick.  206. 

[q)  Richardson  v.  Strong,  13  Ire. 
Law,  106  ;  Gore  v.  Gibson,  13  M.  &  W. 
627 ;  Niell  v.  Morley,  9  Ves.  478 ;  McCril- 
lis V.  Bartlett,  8  New  Hamp.  569.  In 
Baxter  v.  The  Earl  of  Portsmouth,  5  B. 
&  C.  170,  2  C.  &  P.  178,  a  tradesman 
supplied  a  person  with  goods  suited  to 
his  station,  and  afterwards,  by  an  inqui- 
sition taken  under  a  commission  of  lu- 
nacy, that  person  was  found  to  have 
been  lunatic   before  and   at  the   time 

[324] 


when  the  goods  were  ordered  and  sup- 
plied. It  was  held,  that  this  was  not  a 
sufficient  defence  to  an  action  for  the 
price  of  the  goods,  the  tradesman  at  the 
time  when  he  received  the  orders  and 
supplied  the  articles  not  having  any 
reason  to  suppose  that  the  defendant 
was  a  lunatic.  Abbot,  C  3.  "I  was  of 
opinion  at  the  trial  that  the  evidence 
given  on  the  part  of  the  defendant  was 
not  sufficient  to  defeat  the  plaintiff's 
action.  It  was  brought  to  recover  their 
charges  for  things  suited  to  the  state 
and  degree  of  the  defendant,  actually 
ordered  and  enjoyed  by  him.  At 
the  time  when  the  orders  were  given 
and  executed,  Lord  Portsmouth  was 
living  with  his  flimily,  and  there  was 
no  reason  to  suppose  that  the  plain- 
tiffs knew  of  his  insanity.  I  thought 
the  case  very  distinguishable  from 
an  attempt  to  enforce  a  contract  not 
executed,  or  one  made  under  circum- 
stances which  might  have  induced  a 
reasonable  person  to  suppose  the  de- 
fendant was  of  unsound  mind.  The 
latter  would  be  cases  of  imposition  ; 
and  I  desired  that  my  judgm.ent  might 
not  be  taken  to  be  that  such  contracts 
would  bind,  although  I  was  not  pre- 
pared to  say  that  they  M'ould  not." 
(r)  Molton  V.  Cararoux,  12  Jur.  SOO, 


CH.  XIX.     PERSONS  OF  INSUFFICIENT  MIND  TO  CONTRACT. 


313 


The  statutes  of  the  different  States  provide  that  idiots,  luna- 
tics, drunkards,  and  all  persons  of  unsound  mind,  may  be  put 
under  guardianship.  And  the  finding  of  a  competent  court 
of  the  fact  of  lunacy,  and  the  appointment  of  a  guardian,  are 
held  to  be  conclusive  proof  of  such  lunacy,  and  all  subse- 
quent contracts  are  void,  (s)  In  England,  an  inquisition  is 
only  presumptive  evidence  as  to  third  parties,  (t)     But  it  has 


(1848.)  S.  C.  2  Exch.  487.  In  error 
4  Exch.  17.  See  also  Nelll  v.  Morley, 
9  Vcs.  478  ;  Price  v.  Berrington,  7  E. 
L.  &  E.  254;  Fitzhugh  v.  Wilcox.  12 
Barb.  235.  In  Dane  v.  Kirkwall,  8  C. 
&  P.  679,  it  was  held,  that  to  constitute 
a  defence  to  an  action  for  use  and  occu- 
pation of  a  house  taken  by  the  defend- 
ant under  a  written  agreement,  at  a  sti- 
pulated sum  per  annum,  it  is  not  enough 
to  show  that  the  defendant  is  a  lunatic, 
and  that  the  house  was  unnecessary  for 
her;  but  it  must  be  also  shown  that  the 
plaintiff'  knew  this,  and  took  advantage 
of  the  defendant's  situation;  and  if  that 
be  shown,  the  jury  should  find  for  the 
defendant ;  and  they  cannot,  on  these 
facts,  find  a  verdict  for  the  plaintiff"  for 
any  smaller  sura  than  that  specified  in 
the  agreement. 

(s)  Fitzhugh  V.  Wilcox,  12  Barb. 
235 ;  Wadsworth  v.  Sherman,  14  Barb. 
1G9.  Contra,  in  Pennsylvania,  In  re 
Gangwere's  Estate,  14  Pcnn.  417. 
In  Leonard  v.  Leonard,  14  Pick.  280, 
the  court  said  :  —  "It  is  suggested, 
on  the  part  of  the  defendant,  that  an 
inquisition  of  lunacy  in  England  is  not 
conclusive  on  the  question  of  sanity ; 
but  it  is  a  sufficient  answer,  that  such  an 
inquisition  is  very  diff'erent  from  the 
proceedings  in  a  court  of  probate  under 
our  statute.  The  plaintiff  insists  that 
the  guardianship  is  conclusive  of  the 
disability  of  the  ward,  in  relation  to  all 
subjects  on  which  the  guardian  can  act, 
and  that  the  only  mode  of  preventing 
this  operation  is  by  procuring  the  guard- 
ianship to  be  set  aside.  And  there  can 
be  no  question  but  that  the  judge  of 
probate  has  power  to  reconsider  the 
subject,  and  if  it  shall  appear  that  the 
cause  for  the  appointment  of  a  guardian 
has  ceased,  or  that  the  guardian  is  an 
irnpropcr  per.'^on  for  the  office,  the  letter 
of  guardianship  may  be  revoked.  Mc- 
Donald V.  Morton,  l"  Mass.  R.  543.  In 
the  case  of  White  v.  Palmer,  4  Mass. 


VOL.   I. 


28 


R.  147,  it  was  held  that  the  letter  of 
guardianship  was  competent  evidence 
of  the  insanity  of  the  ward,  and  the  rea- 
soning tends  to  show  that  it  is  conclu- 
sive ;  but  this  was  not  the  question  then 
before  the  court.  If  this  were  not  the 
general  principle  of  the  law,  the  situation 
of  the  guardian  would  be  extremely  un- 
pleasant, and  it  would  be  almost  im- 
possible to  execute  the  trust.  In  every 
action  he  might  be  obliged  to  go  before 
the  jury  upon  the  question  of  sanity,  and 
one  jury  might  find  one  way,  and  another 
another.  We  are  of  opinion  that  as  to 
most  subjects  the  decree  of  the  probate 
court,  so  long  as  the  guardianship  con- 
tinues, is  conclusive  evidence  of  the  dis- 
ability of  the  ward ;  but  that  it  is  not  con- 
clusive in  regard  to  all.  For  example, 
the  ward,  if  in  fact  of  suflScient  capacity, 
may  make  a  will,  for  tiiis  is  an  act 
which  the  guardian  cannot  do  for  him. 
But  the  transaction  now  in  question 
falls  within  the  general  rule."  So  j)ro- 
ceedings  in  a  court  of  equity,  establish- 
ing the  lunacy  of  a  party,  are  admissible 
to  pi'ove  the  lunacy  in  an  action  at  law, 
against  third  persons  not  a  party  to  the 
proceedings  in  equity.  McCreight  v. 
Aiken,  1  Rice,  56.  And  creditors  of  an 
obligor  to  a  bond,  if  not  interested  in 
the  result,  are  competent  witnesses  to 
prove  the  obligor's  lunacy.  Hart  r. 
Deamer,  6  Wend.  497.  And  to  prove 
a  party's  lunacy  at  the  time  of  making 
a  contract,  evidence  of  the  state  of  his 
mind  before,  at,  and  after  such  time  is 
admissible.  Grant  v.  Thompson,  4 
Conn.  203.  Although  the  mere  opinion 
of  witnesses  not  medical  men,  relative 
to  the  sanity  of  a  party,  are  not  admis- 
sable,  yet  their  opinions,  in  connection 
with  the  facts  upon  which  they  are 
founded,  may  be.  Grant  v.  Thompson. 
4  Conn.  203;  McCurrv  v.  Hooper,  12 
Ala.  823. 

(0  Sergcson  v.   Sealey,  2  Atk.  412; 
Faulder  v.  Silk,  3  Camp.'l26.    And  the 

[325] 


314*  THE    LAW   OF   CONTRACTS.  [BOOK   I. 

been  held,  that  even  where  the  statute  expressly  declares  all 
the  contracts  of  a  lunatic  under  guardianship  void,  or  disa- 
*bles  him  from  entering  into  contracts,  it  is  not  the  purpose 
nor  effect  of  such  provision  to  annul  his  contract  for  neces- 
saries, if  made  with  good  faith  by  the  other  party,  and  under 
circumstances  which  justify  the  contract;  (u)  and  if  a  lunatic 
be  sued,  or  a  claim  is  made  upon  him,  perhaps  any  person, 
though  not  expressly  authorized,  may  in  his  case,  as  in  that 
of  an  infant,  make,  in  good  faith,  a  legal  tender  for  him, 
which  shall  enure  for  his  benefit. 

Courts  of  law,  as  well  as  equity,  afford  protection  to  those 
who  are  of  unsound  mind.  They  endeavor  to  draw  a  line 
between  sanity  and  insanity,  but  cannot  distinguish  between 
degrees  of  intelligence.  Against  the  consequence  of  mere 
imprudence,  folly,  or  that  deficiency  of  intellect  which  makes 
mistake  easy,  but  does  not  amount  to  unsound  or  disordered 
intellect,  even  equity  gives  no  relief,  unless  another  party 
has  made  use  of  this  want  of  intelligence  to  do  a  positive 
wrongful  act.  (v) 

In  this  country,  where  provision  is  made  by  statute  that 
persons  of  unsound  mind  may  be  put  under  guardianship, 
this  may  be  done  upon  a  representation  and  request,  either 
of  the  authorities  of  the  town  in  which  he  resides,  or  of  his 
friends  or  relatives,  and  after  proper  inquiry  into  the  facts, 
and  into  the  evidence  and  character  of  the  insanity.  The 
guardian  so  appointed  gives  bonds  for  the  due  management 
and  care  of  the  estate  and  person  of  the  insane.  He  then  is 
put  in  possession  of  the  estate  of  his  ward,  and  has  the 
general  disposition  and  control  of  it. 

Similar  provisions  are  often  made  with  respect  to 

SECTION  II. 
SPENDTHRIFTS. 

In  regard  to  these  persons,  the  appointment  of  a  guardian, 
and  the  depriving  them  of  all  power  over  their  own  property, 

same  rule  was  recognizecl  in  Hart  v.  {v)  Osmond  v.  Fitzroy,  3  P.  Wms. 
Deamer,  6  Wend.  497.  See  also  Hop-  129  ;  1  Fonbl.  Eq.  5th  ed".  66  ;  Lewis  v. 
son  V.  Boyd,  C  B.  Monroe,  296.  Pead.  1  Yes.  Jr.  19. 

(u)  McCrillis  v.  Bartlett,  8  N.  H.  569. 
[326] 


en.  XIX.]    PERSONS  OF  INSUFFICIENT  MIND  TO  CONTRACT.  315 

is  generally  put  on  the  ground  of  a  danger  that  they  may 
become  chargeable  to  the  town  or  other  body  corporate  who 
will  be  bound  to  support  them  if  they  become  paupers.  The 
application  must  come,  therefore,  from  the  authorities  of  such 
town;  and  set  forth  that  the  party,  by  drinking,  gaming,  or 
other  debauchery,  is  so  spending  and  wasting  his  means  as 
to  be  in  danger  of  becoming  chargeable.  Here  also  there  is 
to  be  a  judicial  inquiry  into  the  facts,  after  due  notice  to  the 
alleged  spendthrift ;  and  upon  a  finding  of  the  facts  in  ac- 
cordance with  the  petition,  a  guardian  is  appointed  as  before, 
and  after  such  appointment  all  contracts  of  the  spendthrift, 
except  for  necessaries,  are  void.  Where  a  provision  is  made 
for  recording  such  complaint  and  petition  in  a  public  regis- 
try, no  valid  contract,  excepting  as  before  for  necessaries, 
can  be  made  by  the  spendthrift,  after  such  record,  provided 
a  guardian  be  subsequently  appointed  on  the  petition,  (w) 
And  it  has  been  held  that  the  acknowledgment  or  new 
promise  of  a  spendthrift  under  guardianship  is  not  suffi- 
cient to  take  a  former  promise  out  of  the  statute  of  limita- 
tions, (x) 


(lo)  It  was  held  in  Smith  v.  Spooncr, 
3  Pick.  229,  that  the  Massaciuisctts 
statute  of  1818,  c.  60,  wliich,  in  case  a 
guardian  shall  be  appointed  to  a  spend- 
thrift, avoids  "  every  gift,  bargain,  sale, 
or  transfer  of  any  real  or  personal  es- 
tate," made  by  the  spendtiirift  after  the 
complaint  of  the  selectmen  to  the  judge 
of  probate,  and  the  order  of  notice 
thereon  shall  have  been  filed  in  the  regis- 
try of  deeds,  does  not  apply  to  promis- 
sory notes.  But  tliis  case  is  explained  by 
Shaiv,  C.  J.,  in  Manson  v.  ITelton,  1.3 
Pick.  208,  as  depending  wholly  upon 
the  construction  of  the  statute  of  1818. 
(x)  In  Manson  v.  Felton,  13  Pick. 
206,  Shaw,  C.  J.,  said: — "The  ques- 
tion, then,  is,  whether  a  spendthrift,  un- 
der guardianship,  is  competent  to  make 
a  valid  contract  for  the  payment  of  mo- 
ney. The  plaintiff"  relies  upon  Smith 
w.  Spooner,  3  Pick.  229,  as  decisive. 
But  we  think  that  that  case  turns  upon 
a  very  diftcrent  principle.  That  action 
was  brought  upon  a  note  executed  after 
a  ''omplaint  made  by  the  selectmen,  and 
before  the  actual  appointment  of  a 
guardian.  It  depended,  therefore,  whol- 
ly upon  the  construction  of  the  statute 


of  1818,  providing  that  after  sucli  com- 
plaint made,  and  a  copy  filed  with  the 
register  of  deeds,  every  gift,  bargain, 
sale,  or  transfer  of  real  or  personal  es- 
tate, shall  be  void.  It  was  decided  on 
the  ground  that  before  the  actual  ap- 
pointment of  a  guardian  there  was  no 
disability  to  make  contracts,  except  the 
specific  disability  created  by  the  statute ; 
that  such  a  disability  ought  not  to  be 
extended  by  construction,  being  in  de- 
rogation of  a  general  right  and  power  of 
persons  over  their  own  property;  and 
that  the  making  of  a  promissorj'  note 
was  not  a  gift,  sale,  or  transfer  of  pro- 
perty within  tiie  meaning  of  the  act. 
It  is  to  be  remarked  that  the  disability 
created  by  this  act  is  to  take  efl'ect  upon 
a  mere  complaint,  before  any  adjudica- 
tion, or  even  inquiry  into  the  trutli  of 
the  facts  charged,  and  before  the  ap- 
pointment of  a  responsible  officer  com- 
petent and  bound  to  take  charge  of  the 
property,  and  provide  for  the  wants  of 
the  spendthrift  and  those  dependent  on 
him.  Tlicse  considerations  form  a 
marked  distinction  between  the  case  of 
an  actual  adjudication,  conclusively 
fixing   the   disability   contemplated  by 

[327] 


;16  THE    LAW   OF   CONTRACTS.  [BOOK   I. 


SECTION  ni. 

SEAMEN. 

The  reckless  and  improvident  habits  of  seamen,  and  their 
inability  to  protect  themselves  against  the  various  parties  with 
whom  they  deal,  have  induced  courts  both  of  law  and  equity 
to  extend  to  them  a  certain  kind  of  disability  for  their  pro- 
tection ;  that  is,  certain  contracts  with  seamen,  taking  away 
their  rights,  or  laying  them  under  wrongful  obligations,  are 
annulled.  A  number  of  statutes  have  been  enacted  both  in 
England  and  in  this  country  in  relation  to  the  shipping  arti- 
cles, as  they  are  termed,  or  the  contracts  by  which  seamen 
engage  their  services  for  a  voyage.  The  Act  by  which  this 
subject  is  principally  governed  at  this  time  is  that  of  1813, 
ch.  2.  And  it  has  been  very  distinctly  decided  that  any  sti- 
pulations in  shipping  articles,  which  derogate  from  the  gene- 
ral rights  and  privileges  of  seamen,  wall  be  held  void  in 
admiralty,  and  to  a  certain  extent  at  common  law,  unless  it 
shall  be  made  apparent  by  proof  on  the  part  of  the  owner 
that  the  nature  and  effect  of  such  stipulations  were  explained 
to  and  understood  by  the  seaman,  and  an  additional  com- 
pensation allowed  him,  fully  adequate  to  all  that  he  lost  by 
the  stipulation.  (ij)   In  the  case  of  The  Juliana,  referred  to  by 

the  statute,  and  appointing  a  guardian  elusion.  Shearman  v.  Akins,  4  Pick, 
to  act  in  place  of  the  person  disabled,  283.  And  see  Pittam  v.  Poster,  1  B.  & 
and  the  limited  and  temporary  restraint  C.  248;  Ward  r.  Hunter,  6  Taunt.  210; 
established  by  the  statute  of  1818,  on  (y)  Brown  v.  Lull,  2  Sumner,  444; 
the  construction  of  which  the  case  of  Harden  v.  Gordon,  2  IMason,  541 ;  3 
Smith  V.  Spooner  was  decided.  But  Kent's  Com.  193;  The  Juliana,  2  Dod- 
thcre  are  several  expressions  in  the  son,  504.  In  Brown  v.  Lull,  supra, 
opinion  of  the  court,  in  that  case,  im-  Story,  J.,  speaking  of  the  effect  of  a  sti- 
plying  a  distinction  in  their  minds  be-  pulation  in  the  shipping  articles,  which 
tween  the  case  of  a  person  actually  un-  in  that  case  was  relied  upon  as  con- 
der  guardianship,  and  that  of  a  person  trolling  the  right  of  the  seaman  to  wa- 
in relation  to  whom  the  incipient  mea-  gcs,  said  :  —  "It  is  well  known  that  the 
sures  have  been  taken  to  establish  such  shipping  articles,  in  their  common  form, 
a  guardianship.  The  court  speak  of  are  in  perfect  coincidence  with  the  gene- 
the  note,  made  after  complaint  filed,  but  ral  principles  of  the  maritime  law  as  to 
before  the  appointment  of  a  guardian,  seamen's  wages.  It  is  equally  well 
as  a  note  made  "  on  the  eve  of  a  disa-  known  that  courts  of  admiralty  arc 
bility  to  contract."  And  the  closing  in  the  habit  of  watching  with  scrupulous 
remarks  in  the  opinion  of  the  Chief  jealousy  every  deviation  from  these 
Justice  strongly  imply  the  same  con-  principles  in  the  articles,  as  injurious  to 

[328] 


en.  XIX.]    PERSONS  OF  INSUFFICIENT  MIND  TO  CONTRACT.  317 

Judge  Story  in  Harden  v.  Gordon,  the  true  doctrine  on  this 
subject  is  set  forth  by  Lord  Stoivell  with  great  clearness  and 
force.  The  general  principle  in  all  these  decisions  is,  that 
where  a  man  has  made  a  promise  to  one  who  has  taken  a 
wrongful  advantage  of  his  circumstances  or  his  necessities, 
he  shall  not  be  bound  by  such  promise.  And  the  same  prin- 
ciple has  been  enforced  against   seamen  ;  as  where  in  the 


the  rights  of  seamen,  and  founded  in  an 
unconscionable  inequality  of  benefits 
between  the  parties.  Seamen  are  a 
class  of  persons  remarkable  for  their 
rashness,  thoughtlessness,  and  improvi- 
dence. They  are  generally  necessitous, 
ignorant  of  the  nature  and  extent  of  their 
own  rights  and  privileges,  and  for  the 
most  part  incapable  of  duly  appreciating 
their  value.  They  combine,  in  a  singu- 
lar manner,  the  apparent  anomalies  of 
gallantry,  extravagance,  profusion  in 
expenditure,  indiflerence  to  the  future, 
credulity,  which  is  easily  won,  and 
coniidence,  which  is  readily  surprised. 
Hence  it  is  that  bargains  between  them 
and  shipowners,  the  latter  being  per- 
sons of  great  intelligence  and  shrewd- 
ness in  business,  are  deemed  open  to 
much  observation  and  scrutiny;  for 
they  involve  great  inequality  of  know- 
ledge, of  forecast,  of  power,  and  of  con- 
dition. Courts  of  admiralty  on  this 
account  are  accustomed  to  consider 
seamen  as  peculiarly  entitled  to  their 
protection ;  so  that  they  have  been,  by 
a  somewhat  bold  figure,  often  said  to  be 
favorites  of  courts  of  admiralty.  In  a 
just  sense  they  are  so,  so  far  as  the 
maintenance  of  their  rights,  and  the  pro- 
tection of  their  interests  against  the 
effects  of  the  superior  skill  and  shrewd- 
ness of  masters  and  owners  of  ships  are 
concerned.  Courts  of  admiralty  are 
not  by  their  constitution  and  jurisdic- 
tion confined  to  the  mere  diy  and  posi- 
tive rules  of  the  common  law.  But 
they  act  upon  the  enlarged  and  liberal 
jurisprudence  of  courts  of  equity,  and  in 
short,  so  f\ir  as  their  powers  extend, 
they  act  as  courts  of  equity.  "Whenever, 
therefore,  any  stipulation  is  found  in 
the  shipping  articles  which  derogates 
from  the  general  rights  and  privileges 
of  seamen,  courts  of  admiralty  hold  it 
void,  as  founded  upon  imposition,  or  an 
undue  advantage  taken  of  their  necessi- 
ties and  ignorance  and  improvidence, 
unless  two  things  concur;  first,  that  the 

28* 


nature  and  operation  of  the  clause  is 
fully  and  fairly  explained  to  the  sea- 
men ;  and  secondly,  that  an  additional 
compensation  is  allowed,  entirely  ade- 
quate to  the  new  restrictions  and  risks 
imposed  upon  them  thereby.  This  doc- 
trine was  fully  expounded  by  Lord  Stow- 
ell,  in  his  admirable  judgment  in  the  case 
of  The  Juliana,  (2  Dods.  R.  504) ;  and 
it  was  much  considered  by  this  court  in 
the  case  of  Harden  v.  Gordon,  (2  Ma- 
son, R.  541,  556,  557) ;  and  it  has  re- 
ceived the  high  sanction  of  Mr.  Chan- 
cellor Kent  in  his  Commentaries,  (iii. 
§  40,  p.  193.)  I  know  not,  indeed,  that 
this  doctrine  has  ever  been  broken  in 
upon  in  courts  of  admiralty  or  in  courts 
of  equity.  The  latter  courts  are  accus- 
tomed to  apply  it  to  classes  of  cases,  far 
more  extensive  in  their  reach  and  ope- 
ration; to  cases  of  young  heirs  selling 
their  expectancies  ;  to  cases  of  rever- 
sioners and  remainder-men  dealing  with 
their  estates;  and  to  cases  of  wards 
dealing  with  their  guardians ;  and  above 
all  to  cases  of  seamen  dealing  witii  their 
prize-money  and  other  interests.  If 
courts  of  law  have  felt  themselves 
bound  down  to  a  more  limited  exercise 
of  jurisdiction,  as  it  seems  from  the 
cases  of  Appleby  r.  Dodd,  (8  East,  300,) 
and  Jesse  v.  Roy,  (1  Croinp.  Jerv.  & 
Rose.  R.  316,  32y,  339,)  that  they  are, 
it  is  not  that  they  are  insensible  of  the 
justice  and  importance  of  these  consi- 
derations, but  because  they  are  restrain- 
ed from  applying  them  by  the  more 
strict  rules  of  the  jurisprudence  of  the 
common  law,  which  they  are  called 
upon  to  administer.''  In  the  case  of 
The  Betsy  &  Rhoda.  in  the  District 
Court  of  Maine,  (3  N.  Y.  Legal  Ob- 
server, 215,)  it  was  held  that  a  negotia- 
ble note  taken  by  a  seaman  for  wages 
will  not  extinguish  his  claim  for  wages, 
nor  his  lien  on  the  ship,  unless  he  be 
informed  of  this  effect,  and  have  addi- 
tional security  given  him  by  way  of 
compensation. 

[329] 


318 


THE   LAW   OF   CONTRACTS. 


[BOOK  I. 


course  of  a  voyage  they  compelled  the  master  to  make  a  new 
contract  with  them  for  liigher  wages,  by  threats  of  deser- 
tion, (z)  And  contracts  made  with  pilots  or  salvors,  under 
circumstances  of  necessity,  for  exorbitant  or  unjust  compen- 
sation, have  been  set  aside  on  the  same  principle.  But,  in 
general,  contracts  respecting  the  wages  of  seamen  will  be 
construed  liberally  in  their  favor,  in  all  cases  where  there 
may  be  room  for  such  construction.  As  where  by  the  usual 
clause  no  seaman  was  entitled  to  his  wages,  or  any  part 
thereof,  wiiil  the  arrival  of  the  ship  at  the  port  of  discharge, 
the  words  italicized  are  not  construed  as  a  condition  prece- 
dent, but  only  as  determining  the  time  and  place  of  pay- 
ment, (a) 


(z)  Bartlett  v.  Wyman,  14  Johns. 
26i.  In  this  case  the  court  said  that 
the  new  contract  made  by  the  master 
was  not  binding  on  him,  because  made 
'•  in  contravention  of  the  poHcy  of  the 
Act  of  Congress  of  the  20th  July,  1790. 
This  statute  requires,  under  a  penalty, 
every  master  of  a  sliip  or  vessel,  bound 
from  a  port  in  the  United  States  to  any 
foreign  port,  before  he  proceeds  on  the 
voyage,  to  make  an  agreement  in  writ- 
ing or  print  with  every  seaman  or  mari- 
ner or  board,  with  the  exception  of 
apprentices  or  servants,  declaring  the 
voyage,  and  term  of  time  for  which  the 
seaman  or  mariner  shall  be  sliipped. 
In  the  present  case  this  was  done,  and 
the  rate  of  wages  fixed  at  seventeen 
dollars  per  month  for  the  whole  voyage. 
To  allow  the  seamen,  at  an  interme- 
diate port,  to  exact  higher  wages,  un- 
der the  threat  of  deserting  the  sliip,  and 
to  sanction  this  exaction  by  holding  the 
contract,  thus  extorted,  binding  on  the 
master  of  the  ship,  would  be  not  only 
against  the  plain  intention  of  the  sta- 
tute, but  would  be  holding  out  encou- 
ragement to  a  violation  of  duty,  as  well 
as  of  contract.  The  statute  protects  the 
mariner,  and  guards  his  rights  in  all 
essential  points  ;  and  to  jnU  the  master 
at  the  mercy  of  the  crew  takes  away 
all  reciprocity." 

(a)  Swift  V.  Clark,  15  Mass.  173: 
Johnson  v.  Sims,  1  Tct.  Ad.  21.5.  And 
in  The  George  Home,  1  Hagg.  Ad.  370, 
on  an  engagement  to  go  "from  London 

[330] 


to  Batavia,  the  East  India  seas  or  else- 
ivhere,  and  until  the  final  arrival  at  any 
port  or  ports  in  Europe."  It  was  Iteld, 
that  upon  the  arrival  of  the  ship  at 
Cowcs  for  orders,  (as  previously  agreed 
between  the  oivners  and  master,)  the  sea- 
men were  not  bound  to  proceed  on  a 
further  voyage  to  Rotterdam.  But  in 
Webb  V.  Duckingfield,  13  Johns.  391, 
where  a  seaman  who  had  signed  ship- 
ping articles,  by  which  he  engaged 
not  to  absent  himself  from  the  vessel 
without  leave,  "  until  the  voy-^gc  was 
ended,  and  the  vessel  was  discharged  of 
her  cargo,"  on  the  vessel's  arriving  at  her 
last  port  of  discharge,  and  being  there 
safely  moored,  refused  to  remain  and 
assist  in  discharging  the  cargo,  but  ab- 
sented himself  without  leave ;  it  was 
held  that  by  such  desertion  he  had  for- 
feited his  M-ages.  —  So  mutinous  and 
rebellious  conduct  of  the  mariners,  if 
persisted  in,  forfeits  their  right  to  wa- 
ges. Relf  V.  Ship  Maria,  \  Pet.  Ad. 
186. —  So  does  desertion  ;  and  the  sta- 
tute of  the  United  States,  declaring  any 
unauthorized  absence  of  a  seaman  from 
his  ship  for  forty-eight  hours  to  be  de- 
sertion, applies  to  all  cases  where  the 
seaman  does  not  return  within  such 
time,  although  he  may  have  been  pre- 
vented by  the  sailing  of  the  ship.  For 
the  ship  is  not  bound  to  wait  for  him, 
but  he  is  bound  to  rejoin  the  ship  within 
that  period,  suo  periculo.  Coffin  r.  Jen- 
kin.s,  3  Story,  108. 


CH.  XIX.]    PERSONS  OF  INSUFFICIENT  MIND  TO  CONTRACT.  319 


SECTION  IV. 
PERSONS    UNDER   DURESS. 

A  contract  made  by  a  party  under  compulsion  is  void  ; 
because  consent  is  of  the  essence  of  a  contract,  and  where 
there  is  compulsion  there  is  no  consent,  for  this  must  be 
voluntary,  (b)  Such  a  contract  is  void  for  another  reason. 
It  is  founded  on  wrong.  The  violence  was  itself  an  injury 
to  the  party  suffering  it ;  the  party  using  the  violence  had  no 
right  to  do  so,  and  cannot  establish  a  right  on  his  own 
wrong-doing. 

It  is  not,  however,  all  compulsion  which  has  this  effect; 
it  must  amount  to  durilies,  or  duress.  But  this  duress  may 
be  either  actual  violence,  or  threat,  (c)  And  actual  violence, 
if  not  so  slight  as  to  be  quite  unimportant,  is  sufficient  to 
annul  a  contract  made  under  its  influence.  Imprisonment, 
in  a  common  gaol  or  elsewhere,  is  duress  of  this  kind;  but 
to  have  this  effect  it  must  either  be  unlawful  in  itself,  or,  if 
lawful,  then  it  must  be  accompanied  with  such  circumstances 
of  unnecessary  pain,  privation,  or  danger,  that  the  party  is  in- 
duced by  them  to  make  the  contract,  (d) 

(b)  1  Rol.  Abr.  688,  though,  in   fact,    the   plaintiff  had   no 

(c)  1  Bl.  Com.  131.  cause  of  action.     And  although  the  im- 
{d)  Watkins  i'.  Baird,  6  Mass.  511  ;     prisonmcnt   be   lawful,   yet   unless  the 

Eichardson  v.  Duncan,  3  New  Ilamp.  deed  be  made  freely  and  voluntarily,  it 
508  ;  Stouffcr  v.Latshaw,  2  Watts,  167  ;  may  be  avoided  by  duress.  And  if  the 
Nelson  v.  Suddarth,  1  Hen.  &  Munf  imprisonment  be  originally  lawful,  yet, 
350.  —  An  arrest,  though  for  a  just  if  the  party  obtaining  the  deed  detain 
cause,  and  under  lawful  authority,  yet  the  prisoner  in  prison  unlawfully  by 
if  it  be  for  an  unlawful  purpose,  is  du-  covin  with  the  jailer,  this  is  a  duress 
rcss  of  imprisonment.  Severance  v.  which  will  avoid  the  deed.  But  when 
Kimball,  8  New  Hamp.  386. — In  Wat-  the  imprisonment  is  unlawful,  although 
kins  V.  Baird,  supra,  Parsons,  C.  J.,  by  color  of  legal  process,  yet  a  deed 
observed  : — "  It  is  a  general  rule  that  obtained  from  a  prisoner  for  his  de- 
imprisonment  by  order  of  law  is  not  liverance,  by  him  who  is  a  party  to 
duress ;  but,  to  constitute  duress  by  ini-  the  unlawful  imprisonment,  may  be 
prisonment,  either  the  imprisonment  or  avoided  by  duress  of  imprisonment, 
the  duress  after  must  be  tortious  and  In  Allen,  92,  debt  was  sued  on  a  bond, 
unlawful.  If,  therefore,  a  man,  sujipos-  and  duress  of  imprisonment  pleaded  in 
ing  that  he  has  cause  of  action  against  bar.  The  plaintiff  had,  on  charging 
another,  by  lawful  process  cause  him  to  the  defendant  with  felony  in  stealing  a, 
be  arrested  and  imprisoned,  and  the  de-  horse,  procured  a  warrant  from  a  jus- 
fendant  voluntarily  executed  a  deed  for  tice,  on  which  the  defendant  was  arrcst- 
his  deliverance,  he  cannot  avoid  such  ed  and  imprisoned,  and  sealed  the  bond 
deed   by   duress   of  imprisonment,  al-  to  the  plaintitf  to  obtain  his  discharge, 

[331] 


320 


THE    LAW    OF    CONTRACTS. 


[book  I. 


Duress  by  threats  exists  not  wherever  a  party  has  entered 
into  a  contract  under  the  influence  of  a  threat,  but  only 
where  such  a  threat  excites  a  fear  of  some  grievous  wrong ; 
as  of  death,  or  great  bodily  injury,  or  unlawful  imprisonment. 
It  is  a  rule  of  law,  which  is  applied  to  many  cases,  that 
where  the  threat  is  of  an  injury  for  which  full  and  entirely 
adequate  compensation  may  be  expected  from  the  law,  such 
duress  will  not,  of  itself,  avoid  a  contract,  for  the  threatened 
person  ought  to  have  sufficient  resolution  to  resist  the  threat 
and  rely  upon  the  law  ;  as  where  the  threat  is  of  an  injury  to 
property,  or  of  a  slight  injury  to  the  person,  [e)     But  no  ver- 


which  was  done,  the  horse  appearing  to 
be  his  own  horse.  Roil,  J.,  directed  the 
jury  tliat  the  proceedings  being  had  to 
cover  the  deceit,  tlie  bond  was  obtained 
by  duress.  And,  in  our  opinion  it  is 
a  sound  and  correct  principle  of  law, 
when  a  man  shall  falsely,  maliciously, 
and  without  probable  cause,  sue  out  a 
process,  in  form  regular  and  legal,  to 
arrest  and  imprison  another,  and  shall 
obtain  a  deed  from  a  party  thus  arrest- 
ed to  procure  his  deliverance,  such  deed 
may  be  avoided  by  duress  of  imprison- 
ment. Tor  such  imprisonment  is  tor- 
tious and  unlawful,  as  to  the  party 
procuring  it ;  and  he  is  answerable  in 
damages  for  the  tort,  in  an  action  for 
a  false  and  malicious  prosecution  :  the 
suing  of  legal  process  being  an  abuse  of 
the  law,  and  a  proceeding  to  cover  the 
fraud.  And  althougli  JBridgman,  in 
Lev.  68,  09,  is  made  to  say  that  impri- 
sonment in  custody  of  law  by  the  king's 
writ  will  not  be  duress  to  avoid  a  deed, 
when  the  arrest  is  without  cause  of  ac- 
tion, because  the  party  has  his  remedy 
by  action  of  the  case,  yet  this  must  be 
a  mistake,  as  there  is  no  remedy  by 
action  for  suing  a  groundless  suit,  un- 
less the  suit  be  without  probable  cause, 
and  malicious.  And  if  it  be,  certainly 
the  imprisonment  is  wrongful,  as  to  the 
party  who  maliciously  procured  it." —  In 
Richardson  v.  Duncan,  3  New  Hamp. 
508,  it  was  held  that  where  there  is  an 
arrest  for  improper  purposes,  without 
just  cause,  or  an  arrest  for  just  cause, 
but  without  lawful  authority,  or  an  ar- 
rest for  a  just  cause,  and  under  lawful 
authority,  for  an  improper  pui-pose,  and 
the  person  arrested  pays  money  for  his 
enlargement,  he  may  be  considered  as 
having  paid   the  money  by  duress  of 

[332] 


imprisonment,  and  may  recover  it  back 
in  an  action  for  money  had  and  receiv- 
ed.—  But  an  agreement  by  a  prisoner 
to  pay  a  just  debt,  made  while  under 
le(jcd  imprisonment,  cannot  be  avoided 
on  the  ground  of  duress.  Shephard  y. 
Watrous,  3  Caines,  166;  Crowell  v. 
Gleason,  1  Fairf.  325  ;  Meek  v.  Atkin- 
son, 1  Bailey,  84.  —  But  a  bond  given 
for  the  maintenance  of  a  bastard  child, 
as  required  by  some  statute,  is  void  for 
duress,  if  the  warrant  and  other  pro- 
ceedings before  the  magistrate  are  not 
according  to  the  statute.  Fisher  v. 
Shattuck,  17  Pick.  252.  — So  a  bond 
executed  through  fear  of  tinlairftd  im- 
prisonment may  be  avoided  on  account 
of  duress.  Whitefield  v.  Longfellow,  13 
Maine,  146. — But  contra,  as  to  a  mort- 
gage given  as  security  for  payment  of  a 
sum  to  the  county,  as  the  condition  of 
a  pardon.  Rood  v.  Winslow,  2  Doug. 
(Mich.)  68. — A  threat  by  a  judgment 
creditor  to  levy  his  execution  is  not 
such  duress  as  to  make  void  an  agree- 
ment to  pay  the  sum  due.  "Wilcox  v. 
Howland,  23  Pick.  167;  "Waller  v. 
Cralle,  8  B.  Monroe,  11. — Nor  a  threat 
of  lawful  imprisonment.  Eddy  i\  Her- 
rin,  17  Maine,  338  ;  Alexander  r.  Pierce, 
10  New  Hamp.  497. — And  a  note  given 
to  obtain  the  release  of  property  from 
an  illegal  levy  of  an  execution  is  not 
void.  Bingham  r.  Sessions,  6  Sm.  & 
Mar.  13. 

(e)  Atlee  v.  Backhouse,  3  M.  &  "W. 
642;  Sumner  r.  Ferryman,  11  Mod. 
201 ;  Astley  v.  Reynolds,  Strange,  915. 
It  is  on  this  ground,  perhaps,  that  in 
England  duress  of  one's  property  is  not 
sufhcient  to  avoid  a  contract.  Atlee 
V.  Backhouse,  3  M.  &  W.  650,  where 
Parke,  B.,  said :  —  "  There  is  no  doubt 


en.  XIX.]    PERSONS  OF  INSUFFICIENT  MIND  TO  CONTRACT.  321 

diet  could  compensate  adequately  for  loss  of  limb,  or  for 
great  personal  violence,  and  no  man  shall  be  held  bound  to 
incur  such  a  danger.  These  distinctions,  however,  would  not 
now  probably  have  a  controlling  power  in  this  country ;  but 
where  the  threat,  whether  of  mischief  to  the  person  or  the 
property,  or  to  the  good  name,  was  of  sufficient  importance 


of  the  proposition  laid  down  by  Mr. 
Eric,  that  if  floods  are  wrongfully  taken, 
and  a  sum  of  money  is  paid,  simply  for 
the  purpose  of  obtaining  possession  of 
those  goods  again,  without  any  agree- 
ment at  all,  especially  if  it  be  paid  un- 
der protest,  that  money  can  be  recover- 
ed back ;  not  on  the  ground  of  duress^ 
because  I  think  that  the  law  is  clear, 
although  there  is  some  case  in  Vincr's 
Abridgment,  Duress,  (B.)  3,  to  the  con- 
trary, that  in  order  to  avoid  a  contract 
by  reason  of  duress,  it  must  be  duress 
of  a  man's  person,  not  of  his  goods  ;  and 
it  is  so  laid  down  in  Sheppard's  Touch- 
stone, (p.  61)  ;  but  the  ground  is,  that 
it  is  not  a  voluntary  payment.  If  my 
goods  liave  been  wrongfully  detained, 
and  I  pay  money  simply  to  obtain  them 
again,  that  being  paid  under  a  species 
of  duress  or  constraint  may  be  recover- 
ed back  ;  but  if,  wiiile  my  goods  are  in 
possession  of  another  person,  I  make  a 
binding  agreement  to  pay  a  certain  sum 
of  money  and  to  receive  them  back,  that 
cannot  be  avoided  on  the  ground  of 
duress."  Skeate  v.  Beale,  11  Ad.  &  El. 
983.  In  this  case  Lord  Denman,  C.  J., 
said :  —  "We  consider  the  law  to  be 
clear,  and  founded  on  good  reason,  that 
an  agreement  is  not  void  because  made 
under  duress  of  goods.  There  is  no  dis- 
tinction in  this  respect  between  a  deed 
and  an  agreement  not  under  seal ;  and, 
with  regard  to  the  former,  tlie  law  is 
laid  down  in  2  Inst.  483,  and  Sheppard's 
Touchstone,  Gl,  and  the  distinction 
pointed  out  between  duress  of  or  me- 
nace to  the  person,  and  duress  of  goods. 
The  former  is  a  constraining  force, 
which  not  only  takes  away  the  free 
agency,  but  may  leave  no  room  for  ap- 
peal to  the  law  for  a  remedy  :  a  man, 
therefore,  is  not  bound  by  the  agree- 
ment which  he  enters  into  under  such 
circumstances  ;  but  the  fear  that  goods 
may  be  taken  or  injured  does  not  de- 
prive any  one  of  his  free  agency  who 
possesses  that  ordinary  degree  of  firm- 
ness wliich  the  law  requires  all  to  ex- 
ert."    In  this  country,  however,  it  has 


been  held  that  duress  of  goods  would 
under  some  circumstances  avoid  a  man's 
note  or  bond.  Sasportas  v.  Jennings, 
1  Bay,  470 ;  Collins  v.  Wcstbury,  2  Bay, 
211.  In  this  last  case  the  law  was  thus 
laid  down  by  the  court: — "  So  cautious- 
ly does  the  law  watch  over  all  contracts 
that  it  will  not  permit  any  to  be  bind- 
ing but  such  as  are  made  by  persons 
perfectly  free,  and  at  full  liberty  to  make 
or  refuse  such  contracts,  and  that  not  only 
with  respect  to  their  persons,  but  in  re- 
gard to  their  goods  and  chattels  also. 
Contracts  to  he  binding  must  not  be 
made  under  any  restraint  or  fear  of  their 
persons,  otherwise  they  are  void.  .  .  . 
So,  in  like  manner,  duress  of  goods  will 
avoid  a  contract,  where  an  unjust  and 
unreasonable  advantage  is  taken  of  a 
man's  necessities,  by  getting  his  goods 
into  his  possession,  and  there  is  no 
other  speedy  means  left  of  getting  them 
back  again  but  by  giving  a  note  or  a  bond, 
or  where  a  man's  necessities  may  be  so 
great  as  not  to  admit  of  the  ordinary 
process  of  law,  to  afford  him  relief,  as 
was  determined  in  this  court  after  so- 
lemn argument,  in  the  case  of  Sasportas 
I'.  Jennings,  1  Bay,  470  ;  also  in  the 
case  of  Astley  v.  Reynolds,  Strange, 
915."  See  also  Nelson  v.  Suddarth,  1 
Hen.  &  Munf.  3.50;  Foshay  v.  Fergu- 
son, 5  Hill,  158,  where  Dronson,  J., 
said:  —  '"I  entertain  no  doubt  that  a 
contract  procured  by  threats  and  the 
fear  of  battery,  or  the  destruction  of 
property,  may  be  avoided  on  the  ground 
of  duress.  There  is  nothing  but  the 
form  of  a  contract  in  such  a  case,  with- 
out tlie  substance.  It  wants  the  volun- 
tary assent  of  the  party  to  be  bound  by 
it.  And  why  should  the  wrongdoer 
derive  an  advantage  from  his  tortious 
act  ?  No  good  reason  can  be  assigned 
for  upholding  such  a  transaction." — 
Although  in  England  a  contract  may 
not  be  avoided  for  duress  of  goods,  yet 
money  paid  under  such  duress  may  be 
recovered  back.  See  Gates  v.  Hudson, 
5  E.  L.  &  E.  469,  and  note. 

[333] 


322 


THE   LAW   or   CONTRACTS. 


BOOK  I. 


to  destroy  the  threatened  party's  freedom,  the  law  would  not 
enforce  any  contract  which  he  might  be  induced  by  such 
means  to  make.  And  where  there  has  been  no  actual  con- 
tract, but  money  has  been  extorted  by  duress,  under  circum- 
stances which  give  to  the  transaction  the  character  of  a  pay- 
ment by  compulsion,  it  may  be  recovered  back.  (/) 

A  contract  made  under  duress  is  not,  however,  void,  but 
only  voidable ;  and  it  may  be  ratified  and  affirmed  by  the 
party  upon  whom  the  duress  was  practised,  {g-) 


if)  Chase  i'.  Dwinal,  7  Grcenl.  134; 
Gates  V.  Hodson,  5  E-  L.  &  E.  469,  and 
note.  But  where  a  person  has  paid  tlie 
amount  of  taxes  assessed  upon  him,  he 
cannot  recover  it  back,  upon  the  ground 
that  the  assessment  was  illegally  made, 
if  there  be  no  ju'oof  that  he  was  compell- 
ed to  pay  any  portion  thereof  by  duress 
of  his  person  or  seizure  of  his  property, 
or  that  any,part  was  paid  under  protest, 
and  to  avoid  such  arrest  or  seizure. 
The  mere  fact  that  the  taxes  were  paid 
to  collectors,  who  had  warrants  for  the 
collection,  affords  no  satisfactory  proof 
of  payment  bv  duress.  Smith  v.  Head- 
field,  27  Maine,  145. 

((/)  Shep.  Touch.  62,  288.     The  pri- 


vilege of  avoiding  a  contract  for  reason 
of  duress  is  personal,  and  none  can  take 
advantage  of  it  but  the  party  himself. 
Huscombe  v.  Standing,  Cro.  Jac.  187  ; 
Baylie  v.  Clare,  2  Brownl.  276;  Mc- 
Clintick  v.  Cummins,  3  McLean,  158. 
Perhaps,  however,  this  privilege  ex- 
tends to  sureties.  It  was  so  held,  in 
Fisher  iJ.  Shattuck,  17  Pick.  252.  But 
the  contrary  was  expressly  adjudged  in 
Huscombe  v.  Standing,  Cro.  Jac.  187. 
See  also  McClintick  v.  Cummins,  3 
McLean,  158.  In  this  case  it  is  said 
that  the  father  and  son  may  each  avoid 
his  obligation  by  duress  of  the  other; 
and  so  a  husband  by  duress  of  his  wife. 
See  also  Bac.  Abr.  Duress,  (B.) 


[334] 


CH.  XX.]  ALIENS.  323 


CHAPTER   XX. 


ALIENS. 


An  alien,  by  the  definition  of  the  common  law,  is  a  person 
born  out  of  the  jurisdiction  and  allegiance  of  this  country, 
excepting  only  the  children  of  public  ministers  abroad,  whose 
wives  are  American  women.  But  the  statute  of  29th  Janu- 
ary, 1795,  declared  that  "  the  children  of  citizens  of  the  Uni- 
ted States,  born  out  of  the  limits  and  jurisdiction  of  the 
United  States,  shall  be  considered  as  citizens  of  the  United 
States."  The  statute  of  the  14th  April,  1802,  is  more  ob- 
scure on  this  subject,  and  is  regarded  by  high  authority  (A) 
as  leaving  this  question  in  some  doubt  We  do  not  believe 
that  the  courts  of  this  country  would  apply  to  this  question 
those  principles  of  the  common  law  of  England  which  op- 
pose the  provision  of  the  statute  of  1795.  This  cannot,  how- 
ever, be  regarded  as  certain,  until  it  be  settled  by  competent 
adjudication  or  statutory  provision. 

At  common  law  an  alien  cannot  acquire  title  to  real  pro- 

(/i)  Chancellor  Kent  says,  2  Comm.  act  of  January  29th,  1795,  was  not  so; 
52  :  —  "  It  [this  statute]  applied  only  to  for  it  declared  generally  that  '  the  child- 
the  children  of  persons  who  then  luere  or  dren  of  citizens  of  the  United  States, 
had  been  citizens;  and  consequently  the  born  out  of  the  limits  and  jurisdiction 
benefit  of  this  provision  narrows  rapid-  of  the  United  States,  shall  be  consider- 
ly  by  the  lapse  of  time ;  and  the  period  ed  as  citizens  of  the  United  States.' 
will  soon  arrive  when  there  will  be  no  And  when  we  consider  the  universal 
statutory  regulation  for  the  benefit  of  propensity  to  travel,  the  liberal  inter- 
children  born  abroad,  of  American  pa-  course  between  nations,  the  extent  of 
rents,  and  they  will  be  obliged  to  resort  commercial  enterprise,  and  the  genius 
for  aid  to  the  dormant  and  doubtful  and  spirit  of  our  municipal  institutions, 
principles  of  the  English  common  law.  it  is  quite  surprising  that  the  rights  of 
....  But  the  whole  statute  provi-  the  children  of  American  citizens,  born 
sion  is  remarkably  loose  and  vague  in  abroad,  should  by  the  existing  act  of 
its  terms,  and  it  is  lamentably  defective,  1802,  be  left  so  precarious,  and  so  far 
in  being  confined  to  the  case  of  children  inferior  in  the  security  whieli  had  been 
of  parents  who  were  citizens  in  1802,  or  given  in  like  circumstances  by  the  Eng- 
had  been  so  previously.    The  former  lish  statutes." 


[335] 


324  THE   LAW   OF   CONTKACTS.  [bOOK    I. 

perty  by  descent,  nor  by  grant,  nor  by  operation  of  law.  Nor 
can  he  give  good  title  by  grant;  nor  can  he  transmit  good 
title  to  his  heir,  (i)  If  an  alien  take  land  by  purchase,  he 
may  hold  until  office  found,  and  may  bring  an  action  for  the 
recovery  of  possession  ;  (j)  but  if  he  die,  the  land  passes  at 
once  to  the  State,  without  any  inquest  of  office,  (k)  But 
the  severity  of  these  rules  has  been  very  much  mitigated  in 
this  country,  somewhat  by  adjudication,  but  more  by  the 
various  statutes  of  the  States,  in  many  of  which,  and  in  the 
constitutions  of  some,  there  are  provisions  modifying  the 
principles  of  the  common  law  relative  to  aliens.  (/) 

In  respect  to  personal  property,  and  the  various  contracts 
in  relation  to  it,  and  the  obligations  which  these  contracts 
impose  upon  him,  and  the  remedies  to  which  he  may  resort 
for  breach  of  them,  the  alien  stands  very  much  upon  the 
same  footing  as  the  citizen.  An  alien  resident  within  a 
State  is  entitled  to  the  benefit  of  the  insolvent  laws,  (m) 
And  in  the  recent  interesting  cases  respecting  trademarks, 
it  has  been  determined  that  he  is  entitled  to  the  same  pro- 
tection as  our  citizens,  (w)  The  right  to  confiscate  the  debts 
and  property  of  alien  enemies  is  declared  to  exist  in  Con- 
gress, by  the  highest  judicial  authority ;  (o)  but  the  exercise 
of  this  right,  it  may  well  be  hoped,  will  never  be  attempt- 
ed, (p)  But  even  alien  enemies  residing  in  this  country 
may  sue  and  be  sued  as  in  time  of  peace,  on  the  ground  that 
their  residence  is  lawful  until  they  are  ordered  away  by 
competent  authority,  and  this  residence  gives  them  a  right 


{()  Calvin's  case,  7  Co.  25  a;  Col-  (/)  This  subject  is  very  fully  consi- 
lingwood  V.  Pace,  1  Vent.  417;  Jack-  dercd,  and  presented  with  great  clear- 
son  V.  Lunn,  3  Johns.  Cas.  109  ;  Levy  ness,  and  an  abundant  illustration,  in  2 
V.  McCartee,  6  Pet.  102;  Jackson  v.  Kent's  Comm.  sect.  25. 
Green,  7  Wend.  333;  Jackson  v.  Fitz-  (in)  Judd  r.  Lawrence,  1  Cush.  531. 
Simmons,  10  Wend.  1.  («)  Coats  v.  Holbrook,  2  Sandf.  Ch. 
( /)  Waugh  V.  Riley,  8  Met.  295.  586 ;  Taylor  v.  Carpenter,  Id.  603,  3 
(h)  Co.  Lit.  2,  b;  Willon  v.  Berk-  Story.  458  ;  2  W.  &  M.  1  ;  11  Paige, 
ley,    Plowd.    229    h,    230    a  ;    Pox    v.  292.' 

Southack,   12  Mass.    143;    Fairfax  v.         (o)  Brown  i\  United  States,  8  Cranch, 

Hunter,  7   Cranch.  619  ;  Orr  y.  Hodg-  110;    The   Adventure,   Id.    228,   229; 

son,  4  Wheat.  453.      See  also  Wilbur  Ware  i'.  Hvlton,  3  Dallas,  199. 
V.    Tobey,    16     Pick.    179;     Foss    r.         (p)  A  very  powerful  argument  against 

Crisp,  20  Id.  124  ;  People  v.  Conklin,  the  right  itself  was  made  by  Alexander 

2  Hill,  67  ;  Banks  v.  Walker,  3  Barb.  Hamilton,  in  his  letters  signed  Camil- 

Ch.  438.  lus,  published  in  1795. 
'336] 


CH.  XX.]  ALIENS.  325 

to  protection,  (q)  During  this  residence  the  alien  is  equally 
bound  with  the  citizen  to  obey  all  the  laws  of  the  country 
which  do  not  apply  specifically  and  exclusively  to  citizens. 

iq)  Wells  V.  Williams,  1  Ld.  Raym.    Rep.  462;  Clarke  v.  Morey,  10  Johns 
282;  Daubigny  v.   Davallon,  2  Anst.    69;  Russell  v.  Skipwith,  6  Binn.  241. 

VOL.   I.  29  [337] 


326  THE   LAW   OF   CONTRACTS.  [BOOK   I. 


CHAPTER  XXL 

SLAVES. 

Sect.  I.  —  Nature  of  the  Relation  of  Master  and  Slave. 

No  great  success  seems  to  have  attended  the  efforts  that 
have  been  made  to  ascertain  the  nature  and  incidents  of 
slavery,  as  it  exists  in  this  country,  by  referring  to  the  feudal 
law  or  the  civil  law.  Little  as  we  know  of  villeins  and  their 
legal  rights,  enough  is  found  in  the  books  to  show  that  their 
condition  differed  in  very  important  particulars  from  that  of 
negro  slaves.  And  although  there  is  doubtless  more  simi- 
larity to  be  recognized  in  the  slavery  of  the  ancients,  it  is 
certain  that  the  authority  of  the  American  master,  by  law  as 
well  as  usage,  is  many  degrees  short  of  that  despotic  power 
with  which  his  Roman  prototype  was  invested.  On  the 
whole,  it  is  apprehended  that  African  slavery  in  America  is 
so  far  sui  generis  that  in  general  we  have  to  look  to  the  let- 
ter of  the  statute-book,  and  to  actual  and  existing  usage, 
both  for  its  essential  qualities,  and  the  peculiar  rules  by 
which  the  questions  to  which  it  gives  rise  are  to  be  deter- 
mined, (r) 

As  slavery  is  in  derogation  of  natural  right,  and  exists  only 
by  positive  institution,  the  courts  of  this  country,  actuated 
by  the  spirit  of  the  common  law,  have  always  been  disposed 
to  apply  the  maxim,  Jura  in  omni  casu  liber tati  dant  favo- 
rem.  {s)     And  of  this  inclination  we  shall  have  occasion  to 

(r)  Neal  v.  Farmer,  9  Georgia,  553.  the  condition  of  slaves  in  Massachusetts 

As  to  the  nature  of  slavery,  see  Maria  before  the  Revolution,  see  Winchendon 

V.   Sarbaugh,   2    Rand.   228;  Hudgins  u.  Hatfield,  4  Mass.  123. 
V.  Wright,  1  H.  &  Munf.  139 ;  Com-         (s)  Co.  Litt.  124  b,  citing  from  the 

monwealth  v.   Turner,   5   Rand.  678;  eloquent  passage  in  Fortescue,  (cap.  42.) 

Seville  v.  Chretien,  5  Mart.  275;  By-  "Ab   homine   et  pro   vitio   introducta 

num  V.  Bostick,  4  Desaus.  267  ;   Jar-  est  Servitus.     Sed  Libertas  a  Deo  ho- 

man  v.  Patterson,  7  Monr.  645  ;  Fields  minis  est  indita  Naturas.     Quare  ipsa 

V.  The  State.  1  Yerg.  156.  —  Respecting  ab  Homine  sublata,  semper  redire  glis- 

[338] 


CH.    XXI.]  SLAVES.  327 

see  many  examples.  But  while  it  can  never  cease  to  be 
true  that  the  law  favors  liberty,  there  are  limits  to  the  opera- 
tion of  this  as  of  all  other  maxims,  (t)  And  when  the  fact 
of  slavery  is  clear,  the  nature  of  the  relation  of  master  and 
slave  admits  of  no  modification ;  nor  will  courts  either  of 
law  or  equity  lend  aid  to  the  attempts  of  individuals  to  in- 
graft upon  it  new  and  incongruous  features.  A  slave  cannot 
become  partially  free.  The  law  recognizes  only  freedom  on 
the  one  side  and  slavery  on  the  other;  and  there  is  no  inter- 
mediate status,  (u)  Where  a  negro  girl  was  given  by  will, 
on  the  terms  that  she  was  to  be  held  not  as  a  bound  slave, 
but  under  the  care  and  tuition  of  the  legatee,  with  an  allow- 
ance of  wages  ;  and  that  her  children,  if  she  had  any,  were 
to  come  under  the  same  regulation  after  they  paid  for  their 
raising — their  labor  to  be  equally  divided  amongst  all  the 
testator's  children,  if  they  chose  to  employ  them,  the  bequest 
was  adjudged  void,  (v)  So,  on  the  other  hand,  where  a  deed 
emancipating  a  female  slave  contained  a  reservation  to  the 
master  and  his  heirs  of  an  absolute  right  to  all  her  after-born 
children,  it  was  held  that  such  reservatiori  was  void,  and 
that  both  the  woman  and  her  children  were  unconditionally 
free,  (w)  If  partial  payments  have  been  made  to  the  owner 
of  a  slave  for  the  purpose  of  buying  his  freedom,  the  owner 
continues  entitled  to  all  the  services  of  the  slave,  with  full 
power  of  alienation ;  and  one  who  purchases  from  him,  on 
condition  to  emancipate  on  receipt  of  the  residue  of  the 
slave's  value,  is  entitled  to  all  the  slave's  services  until  pay- 
ment of  such  residue,  (x) 

cit,  ut  facit  omne  quod  Libertate  natu-  tracts  ought  ever  to  be  considered  of  so 

rali    privatur.      Quo    ipse   et   crudelis  much  consequence  as  to  exclude  the 

judicandus  est  qui  Libertati  non  favet.  operation  of  others,  equally  founded  in 

Hsec  considerantia  Anglice  Jura  in  om-  justice  and  common  sense.     Freedom 

ni  casu  Libertati  dant  Eavorem."  must  not  be  so  favored  by  intcrpreta- 

(0  The  maxim  in  the  Roman  law,  tion  as  to  depart  entirely  from  the  in- 

(cited  by  Green,  J.,  in  Isaac  v.  West,  6  tention  of  the  contracting  parties,  appa- 

Rand.   652,)   is,   In   obscura  voluntate  rent  on  the  contract  itself." 

manumittentis    favendum  est  libertati.  (u)  See  Maria  v.  Surbaugh,  2  Rand. 

And  the  following  reasonable  observa-  228. 

tions  were  made  by  Mathews,  J.,  in  (v)  Wynn  v.   Carrell,   2   Grat.  227. 

Cuflfy  V.  Castillon,  5  JIart.  496  :  —  "As  And  for   another  fruitless  attempt  of 

to  the  rule  requiring  the  interpretation  the  kind  see  Rucker's  Adm'r  v.  Gilbert. 

in  doubtful  cases  to  be  in  favor  of  free-  3  Leigh,  8. 

dom,  it  is  sufficient  to  observe  that  no  [w)  Fulton  v.  Shaw,  4  Rand.  597. 

one  rule  of  interpretation  in  law  or  con-  (.r)  Francois    v.    Lobrano,   10   Rob. 

[339] 


328  THE  LAW  OF  CONTRACTS.  [BOOK  I. 

It  is  a  well  established  principle  that  partus  sequitur  ven- 
trem.     The  status  of  the  mother  is  the  status  of  her  children. 


SECTION  II. 

ACTION   FOR   FREEDOM. 

For  the  trial  of  the  question  of  freedom  various  forms  of 
action  are  employed ;  for  example,  trespass  and  false  impri- 
sonment, (y)  an  action  on  the  case  in  the  nature  of  ravish- 
ment of  ward,  (^z)  and  a  special  proceeding  upon  petition. 
In  all  the  cases  in  the  books  it  seems  that  a  wide  indulgence 
is  granted  to  the  claimant,  and  the  court  will  not  suffer  him 
to  be  defeated  by  an  omission  of  formalities  of  procedure. 
When  an  action  is  begun,  to  try  the  plaintiff's  right  to  free- 
dom, the  court  will  interfere,  upon  cause  shown,  to  compel 
the  defendant  to  have  him  forthcoming  on  the  day  of  trial, 
and  in  the  mean  time  to  treat  him  with  humanity,  and  to 
allow  him  reasonable  opportunity  to  procure  evidence ;  (a) 
and  this  last  privilege  has  been  extended  so  far  as  to  require 
the  defendant,  where  (pending  the  original  action)  a  strong 
case  was  made  out  for  the  plaintiff  upon  a  habeas  corpus,  to 
give  security  to  leave  the  plaintiff  at  liberty  until  the  next 
term  to  go  whither  he  pleased  in  order  to  procure  testi- 
mony, (b)  And  the  Supreme  Court  of  Louisiana,  where 
the  pleadings,  documents,  and  evidence  in  a  cause,  as  brought 
before  them  on  exceptions,  disclosed  no  ground  for  the  asser- 
tion of  freedom,  said  they  were  not  thereby  bound,  but  would 
notice  facts  de  hors  the  record ;  afid  such  extrinsic  facts  sug- 


(La.)   450.  —  The  Roman  law,  which  (y)  Evans  v.  Kennedy,  1  Hayw.  (X. 

declares  that  although  a  slave  do  not  C.)  422. 

pay  the  whole  price  of  his  freedom,  he  /  x  ^vf.             -dvh-   ,    i    T\r  /^     i 

isyetentitledthereto,  if  he  afterwards  .J^^  Clifton    v.  Philhps,   1    McCord, 

make  up  the  deficiency  bv  his  labor,  is 

held  in  Louisiana  to  apply  only  to  such  («)  See   Gober  v.   Gobcr,   2   Hayw- 

as  are  made  free  n!sto?i;er,  on  condition  (N-   C.)    127;    Evans   v.  Kennedy,    1 

of  paying  a  further  sum  in  futitro,  not    Hayw.  (N.^C.)  422j  Parker  v. . 

to  those  whom  the  master  promises  to  ^  Hayw.  (N.  C.)  345. 

free  when  such  further  sum   shall  be        (b)  Parker  v.  ,  2  Havw.   (N. 

paid.     Cuffy  v.  Castillon,  5  Mart.  496.  C)  345. 
[340] 


CH.  XXI.] 


SLAVES. 


*329 


gesting  a  new  question,  the  cause  was  remanded  for  its 
trial,  (c) 

*  The  issue  always  is  upon  the  plaintiff,  or  petitioner's 
right  to  freedom  against  all  the  world,  (d)  The  jus  tertii 
is  regarded  as  a  complete  bar  to  his  claim,  and  it  is  not 
sufficient  for  him  to  show  a  want  of  title  in  the  party  in  pos- 
session. 

No  presumption  of  slavery  arises  against  a  party  asserting 
his  freedom,  from  the  length  of  time,  however  great,  that  he 
and  his  ancestors  have  been  held  in  slavery,  (e)  If  a  person 
held  as  a  slave  can  show  that  his  ancestor  in  the  female  line, 
no  matter  how  many  degrees  removed,  was  de  jure  a  free 
woman,  he  may  vindicate  at  law  his  own  right  to  free- 
dom. (/)  On  the  other  hand,  when  a  slave,  with  the  know- 
ledge of  his  owner,  has  gone  at  large,  and  acted  as  if  free, 
for  any.  considerable  length  of  time,  a  jury  may  be  directed 
to  presume  that  a  deed  of  manumission  was  executed  with 


(c)  Marie  Louise  v.  Marot,  8  Louis. 
R.  475.     This  was  an  action  claiming 
the    emancipation    of    the    plaintiff's 
daughter  Josephine,  a  mulattrcss,  aged 
twenty  years.     It    appeared  that  the 
owner  of  the  girl  made  a  donation  of 
her,  when  two  years  old,  to  the  defend- 
ant, at  that  time  a  minor  and  a  female, 
upon    condition    that    she    should    be 
emancipated  at  the  age  of  thirty  years  ; 
and  this  donation  was  accepted  by  the 
agency  of  the  defendant's  father:  it  also 
appeared  that  a  few  days  after  the  do- 
nation the  father  executed  a  declaration 
in  writing,  attested  by  two  witnesses, 
stating  that  the  intention  of  the  parties 
to  the  deed  was  that  the  slave  given 
should  be  liberated  at  the  age  of  twenty 
years,  and  not  thirty  as  expressed  in 
the  donation.     The  verdict  of  the  jury 
being  for  the  plaintiff",  it  was  held  unau- 
thorized upon  the  case  as  stated,  since 
the  father  after  accepting  the  donation 
in  behalf  of  the  defendant  was  fundus 
officio,  and  no  act  or  declaration  by  him 
afterwards  could  affect  the  donee.    But 
the  court  said,  per  Mathews,  J. :  —  "  The 
case  is  peculiar  in  its  nature  —  a  claim 
for  liberty !    .    .    .     .    It  is  an  action 
brought  to  redeem   a  helpless  female 
from  slavery;   and   every  thing  which 
niay  properly  be  done  in  favorem  Uberta- 
tis  should  be  done,  even  to  notice  facts 
29* 


de  hors  the  record.  It  was  stated  at  the 
bar,  and  not  denied,  that  the  person 
now  claiming  her  immediate  emanci- 
pation was  taken  by  her  owners  to 
France,  a  country  whose  institutions  do 
not  tolerate  slavery  or  involuntary  servi- 
tude in  any  manner,  and  was  placed  by 
them  under  the  direction  of  a  hair- 
dresser, to  learn  his  art.  Did  she  not 
become  free  in  France  1  Being  brought 
from  a  foreign  country  into  the  United 
States,  is  she  not  free,  according  to  the 
provisions  of  laws  enacted  by  Congress  ? 
These  are  questions  which  we  will  not 
now  solve ;  but  we  deem  it  proper  to 
remand  the  cause,  in  order  that  they 
may  be  put  in  a  train  for  solution." 
The  cause  was  afterwards  tried  before 
a  jury  upon  a  supplemental  petition 
setting  out  the  new  facts  above  alluded 
to,  and  a  verdict  being  rendered  for  the 
plaintiff,  the  judgment  was  affirmed  on 
appeal.  See  Marie  Louise  v.  Marot,  9 
Louis.  R.  473. 

{d)  Harriett  v.  Ridgely,  9  G.  &  Johns. 
174:  Cross  v.  Black,  9  G.  &  Johns. 
198  ;  Berard  v.  Berard,  9  Louis.  R.  158 ; 
Trudeau  v.  Robinette,  4  Mart.  577. 

(e)  Butler  v.  Craig,  2  H.  &  McH. 
216,  236. 

(/)  Rawlings  v.  Boston,  3  H.  & 
McH.  139. 

[341] 


330* 


THE   LAW    OF   CONTRACTS. 


[book  I. 


all  required  formalities,  and  if  it  would  be  invalid  unless  re- 
corded within  a  certain  time,  that  it  was  so  recorded,  (g-) 

There  is  a  presumption  against  every  negro,  in  an  action 
*  for  his  freedom,  that  he  is  a  slave,  (h)  But  in  Delaware 
where  the  number  of  free  blacks  is  much  greater  than  that  of 
the  slaves,  as  a  mere  presumption  the  inclination  is  in  favor 
of  freedom,  (hh)  And  in  an  action  by  a  negro  against  a  third 
person,  not  claiming  to  be  his  master,  the  presumption  is  the 
other  way,  and  there  the  burden  of  proving  the  fact  of  his 
slavery  is  on  the  party  making  the  allegation  in  bar  of  his 
action,  (i)  The  presumption  that  negroes  are  slaves  has 
been  held  to  be  confined  strictly  to  negroes ;  there  is  no  such 
legal  presumption  of  slavery  in  the  case  of  persons  of  any 
shade  of  color  intermediate  between  black  and  white,  (j) 

Even  a  negro  will  be  presumed  free,  though  purchased  as 
a  slave,  if  the  purchase  was  made  within  a  country  whose 
laws  do  not  tolerate  slavery,  unless  it  be  shown  that  he  was 
before  in  one  where  slavery  is  tolerated,  [k)  And  it  seems 
the  courts  of  any  State  will  take  judicial  notice  that  another 
State  disallows  slavery.     At  all  events  it  would  appear  that 


(g)  Burke  v.  Negro  Joe,  6  G.  & 
Johns.  136. 

(h)  Davis  V.  Curry,  2  Bibb,  238  ; 
Adelle  v.  Beauregard,  1  Mart.  183. 
This  presumption,  it  seems,  also  holds 
where  the  action  is  not  a  claim  of  free- 
dom by  the  negro,  but  a  penal  action 
by  his  master  against  a  third  party  upon 
a  statute  forbidding  certain  dealings  ivith 
slaves.  Delery  v.  Mornet,  11  Mart.  4, 
10.  There  Martin,  J.,  said:  —  "Noth- 
ing can  be  clearer  than  the  position  that 
a  person  who,  in  this  State,  deals  with 
a  black  man,  exposes  himself  in  case  of 
his  being  a  slave  to  all  the  consequences 
which  follow  the  dealing  with  a  slave ; 
the  presumption  being  that  a  black  man 
is  a  slave ;  as  by  far  the  greatest  pro- 
portion of  persons  of  that  color  are,  in 
this  State,  held  in  slavery."  See  Hoff- 
man V.  Gold,  8  G.  &  Johns.  79  ;  Jackson 
V.  Bridges,  1  Rob.  (Louis.)  172. 

(kh)  State  w.  Jeans,  4  Han-ing.  570. 

(i)  Hawkins  v.  Vanwickle,  6  Mart. 
N.  S.  420.  There  it  is  said: — "By  a 
law  of  the  Partidas,  where  a  man  claims 
another  who  is  in  the  actual  possession 
of  liberty  as  his  slave,  the  necessity  of 
proving  him  such  is  thrown  on  the 
[342] 


claimant — a  fortiori  where  the  question 
arises  collaterally  with  a  third  party ; 
and  the  former  master  by  his  not  inter- 
fering furnishes  a  violent  presumption 
that  the  state  and  condition  of  the 
plaintiff  is  that  which  she  represents  it 
to  be.  Partidas,  3,  Tit.  15,  Law  5."  It 
is  presumed  that  the  rule  of  evidence 
contained  in  the  latter  part  of  this  ex- 
tract would  be  applied  in  other  States 
as  well  as  Louisiana  ;  as  to  the  former 
proposition  there  is  perhaps  more  doubt, 
though  the  reasonableness  of  the  doc- 
trine seems  unquestionable.  In  For- 
syth V.  Nash,  4  Mart.  389.  the  court, 
per  Martin,  J.,  said:  —  "Whenever  a 
plaintiff  demands  by  suit  that  a  person 
whom  he  brings  into  court  as  a  defend- 
ant, and  thereby  admits  to  be  in  posses- 
sion of  his  freedom,  should  be  declared 
to  be  his  slave,  he  must  strictly  make 
out  his  case.  In  this,  if  in  any,  adore 
non  prohante  absolvitur  i-etis." 

(j)  Gobu  V.  Gobu,  Tayl.  (N.  C.) 
164;  S.  C.  2  Hayw.  170,  nom.  Gober  r. 
Gober;  Adelle  v.  Beauregard,  1  Mart. 
183. 

{k)  Forsyth  v.  Nash,  4  Mart.  385. 


CH.  XXI.]  SLAVES.  *331 

a  court  will  not  extend  to  a  trial  of  the  question  of  freedom 
the  principle,  applied  in  other  cases,  that  the  laws  of  a 
foreign  state,  when  not  exhibited  in  evidence,  will  be  taken 
to  be  the  same  as  their  own.  (/)  This  seems  to  be  on  the 
'ground  that  slavery  is  in  its  nature  exceptional  to  common 
right,  and  therefore  is  not  to  be  presumed  to  extend  beyond 
the  influence  of  the  local  law,  by  force  of  which  alone  it  ex- 
ists and  is  maintained. 

Rules  of  evidence,  as  well  as  of  procedure,  have  some- 
times been  suspended  in  behalf  of  parties  claiming  release 
from  servitude.  Former  admissions  of  such  a  claimant,  as 
that  he  belonged  to  a  third  person  from  whom  he  ran  away, 
will  not,  it  seems,  be  allowed  the  weight  against  him  which 
is  given  to  admissions  in  general,  (m)  In  Maryland,  the  rule 
excluding  hearsay  evidence  has  been  in  several  cases  con- 
siderably relaxed ;  (n)  but  the  Supreme  Court  of  the  United 
States  have  refused  to  admit  any  innovation  upon  the  esta- 
blished principles  of  evidence,  (o)  The  pedigree  of  the  peti- 
tioner may  be  shown  by  hearsay  or  general  reputation,  [p) 
A  judgment  in  favor  of  the  plaintiff's  freedom,  in  an  action 
between  him  and  a  party  from  whom  the  defendant  does  not 
derive  title,  or  from  whom  he  derives  title  by  a  conveyance 
prior  to  the  judgment,  is  not  admissible  in  evidence,  {q) 
But,  on  the  same  principle,  a  judgment  against  the  plaintiff's 
mother  in  an  action  for  freedom  is  not  evidence  against  the 
plaintiff,  (r)     Proof  of  an  emanicipation  by  the  party  at  the 

(l)  See  Marie  Louise    v.  Marot,   8  incompetent   to   establish  any  specific 

Louis.    R.  475,  479,  cited  in  note  (c)  fact,  which  fact  is  in  its  nature  suscep- 

aute  ;  and  also  Marie  Louise  v.  Marot,  tible  of  being  proved  by  witnesses  who 

9     Louis.     R.    473,    476,    where     the  speak    from    their    own    knowledge;'" 

fact    that    by  the  laws    of   France  a  added,    "  However  the  feelings  of  the 

slave    brought    there    by    his    or    her  individual   may  be   interested    on   the 

owner    is     ipso    facto    liberated,    was  part  of  a  person  claiming  freedom,  the 

proved  to  the  jury  by  the  testimony  of  court  cannot  perceive  any  legal  distinc- 

witnesses.  tion  between  the  assertion  of  this  and  of 

(m)  Forsyth  v.  Nash,  4  Mart.  385.  any  other  right,  which  will  justify  the 

(n)  Shorter  I'.  Boswell,  2  H.  &  Johns,  application   of  a   rule   of  evidence   to 

359  ;  Mahony  v.  Ashton,  4  H.  &  McH.  cases  of  this  description,  which  would 

295.  be  inapplicable  to  general  cases  in  which 

(o)  Mima    Queen    v.    Hepburn,    7  a  right  to  property  may  be  asserted.' 

Cranch,  290,  (where  DuyaZ/,  J.,  dissent-  (p)  Mima    Queen    v.    Hepburn,    7 

cd)  ;    confirmed   in  Davis  v.  Wood,  1  Cranch,  290. 

Wheat.  6.     In   the  former  case.  Mar-  (q)  Davis    v.    Wood,    I    Wheat.  6  : 

shall,  C.  J.,  after  declaring  the  general  Kitty  v.  Fitzhugh,  4  Rand.  600. 

principle    that    "  Hearsay  evidence   is  (r)  Toogood  v.  Scott,  2  H.  &  McH. 

[343] 


332*  THE  LAW   OF  CONTRACTS.  [BOOK  I. 

time  in  possession  of  the  plaintiff  is  primd  facie  evidence  of 
an  emancipation  by  his  owner.  (5)  A  deed  of  emancipation, 
regularly  executed  and  recorded  according  to  the  laws  of  the 
State  where  executed,  is,  it  seems,  presumptive  evidence  of 
*  freedom,  in  an  action  brought  either  in  that  State  or  an- 
other,   {t) 

Some  uncertainty  exists  as  to  the  damages  which  may  be 
given,  when  judgment  is  rendered  for  the  plaintiff  in  an 
action  for  freedom.  The  Court  of  Appeals  of  Kentucky,  in 
a  case  before  them,  asserted  as  an  equitable  rule,  that  if  the 
defendant  had  reasonable  ground  to  believe  the  plaintifi"  to 
be  his  slave,  the  damages  should  be  nominal ;  otherwise,  sub- 
stantial, {u)  This  was  in  equity.  In  a  case  at  law,  another 
court  seemed  to  regard  the  amount  of  damages  as  lying  in 
the  discretion  of  the  jury  ;  and  they,  under  the  circumstances 
of  that  case,  having  given  substantial  damages,  the  court 
refused  to  disturb  the  verdict,  {v)  A  person  held  in  slavery 
asserted  her  freedom  in  an  action  of  trespass,  and  recovered 
judgment,  with  nominal  damages ;  she  afterwards  brought 
another  action  of  trespass  for  the  value  of  her  services  while 
held  as  a  slave ;  the  court  held  that  the  action  could  be 
maintained,  and  that  the  defendant  was  estopped  by  the 
judgment  in  the  former  action  from  contesting  her  right  to 
wages  from  the  commencement  of  that  former  action,  [iv)  It 
seems  that  such  a  second  action  may  be  brought  for  the  re- 
covery of  wages  for  a  time  antecedent  to  the  commencement 
of  the  first  action ;  but  in  such  a  case  the  controversy  be- 
comes again  one  of  title,  and  the  defendant  is  not  estopped 
to  say  that  at  such  antecedent  time  he  rightfully  held  the 
plaintiff  as  his  slave ;  (x)  and  it  would  appear  that  there  no- 

26;    Butler  v.    Craig,   2   H.   &  McH.  422.     See    also    Phillis    v.   Gentin,   9 

214.  Louis.  R.  208 ;  Pleasants  v.  Pleasants, 

(s)  Simrains   v.  Parker,  4  Mart.  N.  2   Call,  350 ;   Matilda  v.  Crenshaw,  4 

S.200.  Yerg.  299. 

(t)  Brown  r.  Compton,  10  Mart.  425.  ^^j  g^^^^  ^    Williams.  1  Dev.  376. 

This  was  a  cause  between  the  master  ^^  (^  ^^^^          ^^^  included  in  the  da- 

of  the  slave  and  a  third  party,  where  ^^^    ^^^^-^^^  ^    Crenshaw,    4 

the  fact  of  slavery  mcidcntally  came  in  yenj  299 

question ;  what  the  ruling  of  the  court  /    1,^"..,,           /^        .           .    ^ 

would  have  been  in  an  action  by  the  (">)  Matilda  v.   Crenshaw,   4   Yerg. 

slave  for  his  freedom  does  not  certainly  2^^- 

appear.  (x)   Catron,  C.  J.,  Matilda  v.  Cren- 

(u)  Thompson   v.  Wilmot,   1   Bibb,  shaw,  «6i  sup. 

[344] 


CH.   XXI.]  SLAVES.  *333 

thing  would  prevent  his  denying,  if  he  chose,  that  he  then 
held  the  plaintiff  as  his  slave  at  all.  Costs  have  been  allowed 
to  the  plaintiff  recovering  judgment  in  an  action  for  freedom, 
although  no  damages  were  given  by  the  jury ;  the  ordinary 
*  provisions,  making  costs  depend  on  the  recovery  of  damages, 
being  held  not  to  apply  in  a  case  of  this  nature,  (y) 


SECTION  III. 

THE   CAPACITY   OF   SLAVES   TO   CONTRACT. 

Slaves  are  in  law,  in  some  respects,  things ;  in  other  re- 
spects, persons.  As  property  they  are  not  in  general  real 
estate  ;  though  they  are  very  frequently  descendible  as  such. 
But  it  is  as  persons  that  we  in  this  place  have  to  consider  them. 
The  liability  of  a  carrier  transporting  them,  it  has  been  held, 
is  that  of  a  carrier  of  passengers,  and  not  of  goods,  (z)  A 
slave  may  be  an  agent ;  and  the  fact  of  agency  may  be 
shown  in  this  case  by  the  same  evidence  as  in  any  other,  (a) 
In  their  ordinary  service,  although  they  constitute  one  class 
of  servants,  they  do  not,  it  seems,  subject  their  masters  to  the 
same  degree  of  responsibility  for  the  consequences  of  their 
negligence  that  the  masters  of  other  servants  incur,  (b) 

Slaves  are  looked  upon  as  persons  by  the  criminal  law. 
Their  most  effectual  protection  against  injuries,  not  affecting 
life  or  limb,  inflicted  by  a  stranger,  consists  in  the  right 
which  the  law  confers  upon  the  master  (not  only  as  it  seems 
to  secure  him  from  loss,  but  for  the  protection  of  the  slave,) 
to  recover  damages  from  the  wrong-doer,  (c)  For  such  in- 
juries, received  at  the  hand  of  the  master  himself,  some  codes 
provide  penalties  of  several  sorts  —  among  which  may  be 

(y)  Clifton  v.   Phillips,   1    McCord,  tain  trespass.     Cornfute  r.  Dale,  1  H.  & 

469.  Johns.   4.      Statutes    conferring   upon 

(2)  Eoyce  v.  Anderson,  2  Pet.  150;  strangers   a  measure    of   power    over 

Clark  V.  McDonald,  4  McCord,  223.  slaves  are  construed  strictly.    Blanch- 

(a)  Chastain    v.    Bowman,    1    Hill,  ard  w.  Dixon,  4  Louis.  An.  K.  57.  —  In 

(So.   Car.)   270;   Gore   v.  Buzzard,  4  South  Carolina  the  law  does  not  au- 

Leigh,  231.  thorize  the  killing  of  a  runaway,  except 

(h)  Snee  v.  Trice,  2  Bay,  345.  where  the  party  attempting  to  seize  him 

(c)  White  V.  Chambers,  2  Bay,  70.  is  endangered  by  actual  resistance,  as 

In  Maryland  the  master  must,  it  seems,  by  assaulting  or   striking.     Arthur  v. 

show  a  loss  of  service  in  order  to  main-  Wells,  2  South  Car.  Const.  K.  316. — 

[345] 


334*  THE   LAAV   OF   CONTRACTS.  '  [BOOK   I. 

classed  the  equitable  power  which,  in  one  State  at  least,  is 
conferred  on  the  court  having  cognizance  of  the  action  for 
*cruel  treatment,  to  decree,  in  addition  to  the  regular  penalty, 
that  the  slave  shall  be  sold  away  from  his  owner,  (d)  But 
in  Virginia  it  has  been  decided  that  an  indictment  cannot  be 
sustained,  at  common  law,  against  a  master  for  the  exces- 
sive and  cruel  beating  of  his  slave  ;  (e)  and  it  is  believed  that 
in  that  State,  and  probably  in  others,  no  statutory  remedy  is 
provided  for  the  case.  The  absence  of  such  provision  seems 
to  be  accounted  for  within  those  States,  partly  by  the  belief 
that  the  interest  of  the  owner  is  identified  with  the  well-being 
of  his  servant,  and  that  this  interest,  with  the  natural  affec- 
tion arising  out  of  so  close  a  relation  as  master  and  slave, 
are  sufficient  guaranties  of  humane  treatment ;  and  partly 
by  the  apprehension  that  in  attempting  to  supply  a  com- 
plete remedy  against  the  hardships  incidental  to  slavery, 
the  stability  of  the  institution  itself  may  be  impaired. 
And  it  may  be  there  considered  as  some  check  upon  an  in- 
human master,  that  he  has  before  him  the  risk  that  his  seve- 
rity, by  being  carried  a  little  further  than  his  purpose,  may 
expose  him  to  the  utmost  rigor  of  justice.  It  has  very  recent- 
ly been  held,  by  the  General  Court  of  Virginia,  that  where 
the  wilful  and  excessive  whipping  of  a  slave  by  his  master 
and  owner,  though  without  any  intent  to  kill,  results  in 
death,  it  is  murder  in  the  first  degree.  (/) 

SECTION  IV. 
LIABILITY   OF  THE    MASTER   FOR  THE   SLAVE. 

ft 

For  the  torts  of  a  slave  his  owner  is  commonly  answerable 

The  battery  of  a  slave  bj^ a  stranger  has  court  in  this  case  said :  —  "In  inflicting 

been  held  to  be  also  an  indictable  of-  punishment  for  the  sake  of  punishment, 

fence.     State  v.  Hale,  2  Hawks,  582.  the  owner  of  the  slave  acts  at  his  peril ; 

{d)  Markman  v.  Close,  2  Louis.  R.  and  if  death  ensues  in  consequence  of 

581   586.    And  see  Hendricks  v.  Phil-  such  punishment,  the  relation  of  master 

lips!  3  Louis.  An.  E.  618.  and  slave  affords  no  ground  of  excuse 

(e)    Commonwealth    v.     Turner,    5  or  palliation.    The  principles  of   the 

Hand.  678.    And  a  hirer  has  the  same  common  law  in  relation  to  homicide 

immunity  as  the  owner.     The  State  v.  apply  to  this  case,  without  qualification 

Mann,  2  Dev.  263.  or  exception,  and  according  to  those 

(/)  Souther's  case,  7  Grat.  673.  The  principles,  the  act  of  the  prisoner,  in  the 

[346] 


CH.  XXI.] 


SLAVES. 


335 


civiliter  in  damages ;  (g-)  but  when  he  commits  a  crime 
*  punishable  with  death,  upon  conviction  therefor,  his  value  is 
assessed,  and  paid  out  of  the  treasury  of  the  State  to  the 
owner.  (A)  A  slave  who  runs  away  from  his  master  steals 
himself,  and,  as  in  the  case  of  other  stolen  things,  no  pro- 
perty, general  or  special,  can  be  acquired  by  another  in 
him.  (i) 

The  rule  that  one  who  employs  agents  or  servants  is  not 
liable  to  any  one  of  them  for  an  injury  occasioned  by  the 
negligence  or  misconduct  of  any  other  of  them,  (ii)  is  held 
not  applicable  to  slaves.  One  reason  is,  that  the  free  man 
can  leave  a  service  or  employment  which  he  finds  dangerous, 
but  the  slave  cannot.  Another  is,  that  if  employers  of  hired 
slaves  were  thus  protected  against  the  consequences  of  their 
own  carelessness  or  misconduct,  the  safety  of  the  slave  would 
be  endangered,  (j) 


case  under  consideration,  amounted  to 
murder.  Upon  this  point  we  are  una- 
nimous." 

(g)  See  the  statutes  of  the  several 
States.  In  Louisiana,  the  master  may 
discharge  himself  from  such  responsi- 
bility by  abandoning  his  slave  to  the 
person  injured  ;  in  which  case  such  per- 
son shall  sell  the  slave  at  public  auc- 
tion, and  the  surplus,  if  any,  of  the  pro- 
ceeds, over  the  damages  and  costs,  shall 
be  given  to  the  master.  Civ.  Code  of 
Louis.  Art.  2300.  —  As  to  the  master's 
liability,  in  the  absence  of  a  statute,  see 
Snee  v.  Trice,  2  Bay,  345. 

(h)  Such  at  least  is  the  law  in  Vir- 
ginia.    Va.  Code,  1849,  ch.  212,  §  9. 

(i)  See,  as  to  the  law  in  Louisiana, 
Gates  V.  Caffin,  3  Louis.  An.  R.  339.— 
In  South  Carolina,  under  the  statute  of 
1790,  prohibiting  the  felonious  stealing, 
taking,  or  carrying  away  by  a  slave  of 
any  slave,  "  being  the  property  of  ano- 
ther," with  intent  to  carry  him  out  of 
the  province,  it  is  held  that  there  may 
be  a  conviction  although  no  force  was 
employed ;  on  the  ground  that  force  is 
not  an  essential  element  in  the  larceny 
of  animate  objects  possessing  the  power 
of  locomotion.  The  State  v.  Whyte,  2 
N.  &  McC.  174. 

(ii)  See  note  (zz)  Ch.  IX,  post. 

ij)  In  Scudder  v.  Woodbridge,  1 
Geo.  1 95,  it  was  so  decided  at  the  court 


below ;  and  on  error  the  Supreme 
Court  say  :  —  "  The  general  doctrine,  as 
contended  for  by  counsel  for  plaintiff  in 
error,  may  be  correct,  .  .  .  and  we  are 
disposed  to  recognize  and  adopt  it  with 
the  cautions,  limitations,  and  restric- 
tions in  those  cases.  But  interest  to 
the  owner,  and  humanity  to  the  slave, 
forbid  its  application  to  any  other  than 
free  white  agents.  .  .  .  Slaves  dare 
not  intermeddle  with  those  around,  em- 
barked in  the  same  enterprize  with 
themselves.  .  .  .  Neither  can  they 
exercise  the  salutary  discretion,  left  to 
free  white  agents,  of  quitting  the  em- 
ployment when  matters  are  misma- 
naged, or  portend  evil.  .  .  .  But  we 
think  it  needless  to  multiply  reasons 
upon  a  point  so  palpable.  There  is 
one  view  alone  which  would  be  conclu- 
sive with  the  court.  The  restriction  of 
this  rule  is  indispensable  to  the  welfare  of 
the  slave.  In  almost  every  occupation, 
requiring  combined  effort,  the  employer 
necessarily  intrusts  it  to  a  variety  of 
agents.  Many  of  those  are  destitute  of 
principle,  and  bankrupt  in  fortune. 
Once  let  it  be  promulgated  that  the 
owner  of  negroes  hired  to  the  numerous 
navigation,  railroad,  mining,  and  manu- 
facturing companies  which  dot  the 
whole  country,  and  are  rapidly  increas- 
ing —  I  repeat,  that  for  any  injury  done 
to  this  species  of  property,  let  it  be  un- 

[347] 


336  THE  LAW  OF  CONTRACTS.  [BOOK  I. 

To  what  extent  a  master  is  liable  to  pay  for  necessaries 
furnished  to  his  slave  seems  not  clearly  settled.  It  has  been 
held  that  he  is  liable  for  medical  or  surgical  assistance  ren- 
dered to  his  slave  in  a  case  of  extreme  necessity,  (k) 

A  slave  cannot  enter  into  any  binding  contract  with  his 
master ;  (l)  nor  can  he,  while  yet  a  slave,  appear  as  a  suitor 
in  a  court  either  of  law  or  equity,  to  enforce  any  alleged 
contract  against  any  person,  (m)  He  cannot  take  by  de- 
scent; (w)  nor  by  purchase,  unless  freedom  accompany  the 
gift  of  property,  (o)  A  bequest  to  a  free  person,  in  trust  for 
him,  is  void,  (p) 

SECTION  V. 
OF  CONTRACTS  BETWEEN  A  SLAVE  AND  ONE  NOT  HIS  MASTER. 

With  respect  to  the  validity  of  a  contract  between  a  slave 
and  a  person  who  is  not  his  master,  there  is  some  uncertainty. 
There  are  statutes,  in  probably  all  of  the  slaveholding  States, 
prohibiting  contracts  with  slaves  without  the  consent  of 
their  masters,  (q)  Though  no  statute  upon  the  subject  ex- 
isted, it  would  seem  to  be  a  necessary  incident  to  slavery, 
that,  on  the  supposition  that  a  slave  can  contract  at  all,  the 
consent  of  the  master,  express  or  implied,  must  be  requisite 

derstood  and  settled  that  the  employer  is  would  seem  cannot  be  regarded  as  law 

not  liable,  but  that  the  owner  must  look  in  this  country. 

for  compensation  to  the  co-servant  who  (??»)  Bland  v.  Negro  Dowling,  9  G.  & 

occasioned  the  mischief;  and  I  hesitate  Johns.  19. 

not  to  affirm,  that  the  life  of  no  hired  (n)    Cunningham    v.    Cunningham, 

slave  would   be    safe.      As  it  is,   the  Cam.  c&,  Nor.  353 ;  Bynum  v.  Bostick, 

guards  thrown  around  this  class  of  our  4  Des.  266. 

population  are  sufficiently  few  and  fee-  (o)  Bynum  v.  Bostick,  4  Des.  266; 

ble.     We  are  altogether  disinclined  to  Hinds  i\  Brazealle,  2  How.  (Miss.)  837  ; 

lessen   their  number  or  weaken   their  Cunningham  v.  Cunningham,  Cam.  & 

force.  We  are,  therefore,  cordially,  con-  Nor.  353  ;  Hall  v.  MuUin,  5  H.  &  Johns. 

fidently,  and  unanimously  agreed,  and  190. 

so  adjudge,  that  the  judgment  below  be  (p)   Cunningham    v.    Cunningham, 

affirmed,  with  costs."  Cam.  &  Nor.  353;  Hinds  v.  Brazealle, 

(k)  Johnston  v.  Barrett,  2  Bail.  562.  2  How.  837  ;  Brandon  v.  Planters  Bank, 

And  see  Dunbar  v.  Williams,  10  Johns.  1  Stew.  (Ala.)  320  ;  Bynum  v.  Bostick, 

249.  4  Des.  266. 

(/)  Henry  v.  Nunn's  Heirs,  1 1  B.  Mon.  (q)  See,  as  to  the  construction  of  such 

239 ;  Bland  v.  Negro  Dowling,  9  G.  &  language  in  a  statute,   per  Archer,  J., 

Johns.   19.     There    are    dicta  in  Wil-  Bland  w.  Negro  Dowling,  9  G.  &  Johns, 

liams  V.  Brown,  3  B.  &  P.  69,  which  it  27 ;   and  Hall  v.  MuUin,  5  H.  &  Johns. 

190. 

[348] 


CH.  XXI.]  SLAVES.  *337 

to  enable  a  slave  to  bind  either  a  third  party  or  himself  by  a 
contract.  This  seems  to  have  been  taken  for  granted  in  a 
case  decided  in  the  year  1802,  in  the  Court  of  Common 
*  Pleas  in  England;  where  the  binding  force,  after  emanci- 
pation, of  an  agreement  entered  into  by  a  slave,  with  the 
consent  of  his  master,  was  established,  so  far  as  the  authority 
of  that  case  goes,  (r)  The  emancipation  of  the  slave  was 
there  connected  with  his  contract,  and  formed  the  consider- 
ation for  it.  How  it  is  with  a  contract  which  does  not  relate 
to  emancipation  is  evidently  a  different  matter.  In  a  State 
where  slaves  were  declared  by  law  incapable  of  making  any 
kind  of  contract,  a  suit  was  brought  to  recover  the  amount  of 
a  promissory  note  given  by  the  defendants  to  a  slave  of  the 
plaintiff's";  the  court,  in  considering  the  case,  held  that 
although  the  slave  could  neither  bind  herself,  because  she  was 
without  will,  nor  enter  into  any  contract  binding  on  her  mas- 
ter, without  special  authority  from  him,  yet  it  did  not  follow 
that  the  master  could  not  claim  the  benefit  of  an  engage- 
ment made  in  favor  of  his  slave  by  a  person  capable  of  con- 
tracting; and  the  action  was  maintained,  (s)  But  the  same 
question  arising  nearly  at  the  same  time  in  another  State, 
the  decision  there  was  the  other  way ;  on  the  ground  that 
any  contract  entered  into  by  a  slave  in  his  own  name  is  ab- 
solutely void,  (t) 

SECTION  V. 
OF    GIFTS   TO   A    SLAVE. 

Another  question  of  much  interest  is  whether  a  slave  can 
take  by  gift,  or  executed  contract ;  and,  if  he  can  take,  whe- 

(?•)  Williams  v.  Brown,  3  B.  &P.  G9,  decide  in  accordance  with  it.     Colcock, 

Lord  Alvanley,  C.  J.,  dissentlente.  J.,  delivering  the  opinion  of  the  court, 

(s)  Livaud'ais  v.  Fon,   8  Mart.  161.  said:  —  "  I  am  aware  that  at  one  period 

The  point  here  decided   now  forms  a  in  the  history  of  Home  the  most  abject 

provision  of  the  civil   code.     See  Civ.  state  of  slavery  existed,  and  that  "the 

Code  of  Louis.  Art.  1785.  slaves  of  that  day  were  considered  as 

(0  Gregg  V.  Thompson,  2  South  Car.  chattels,  and  that  whatever  they  acquir- 

Const.  II.  330.     The  court  in  this  case  ed  was  their  master's  except  their  pe- 

recognize  the  Roman  law  resijccting  the  culium.     But  when  it  is  said  that  v.diat- 

staim  of  slaves,  and  seem  to  profess  to  ever  they  acquire  became  their  master's, 


VOL.  I. 


30  [349] 


338  THE  LAW  OF  CONTRACTS.  [BOOK  I. 

ther  the  property  in  the  chattel  given  passes  instantaneously 
to  his  master,  or  remains  in  him,  subject  to  his  disposal  until 
specific  appropriation  by  the  master.  A  negro,  who  was  sup- 
posed to  be  free,  but  who  was  in  fact  a  slave,  purchased  his 
daughter,  and  then  executed  to  her  a  deed  of  emancipation  ; 
'his  own  master  laid  claim  to  the  girl,  and  for  him  it  was 
urged  that  the  rule  of  the  civil  law  prevailed,  and  that  the 
property  passed  through  the  purchaser,  being  a  slave,  to  the 
purchaser's  master :  in  behalf  of  the  girl,  it  was  contended 
that  as,  under  the  feudal  law,  a  villein  purchasing  property 
held  it  until  appropriation  by  his  lord,  with  power  (before  the 
lord's  interference,)  to  convey  a  perfect  title  to  his  own  alienee, 
the  case  was  the  same  with  a  slave ;  and  therefore  that  the 
deed  of  manumission,  or  conveyance  of  the  girl  to  herself, 
was  good.  The  question  could  not  be  decided  ;  because  upon 
the  construction  given  by  the  court  to  a  statute  of  the  State, 
the  sale  to  the  slave-father  was  void  by  force  of  that  statute, 
so  that  the  property  in  the  girl  did  not  pass  out  of  the  original 
owner ;  [ii)  the  court  however  were  able  to  declare  the  girl 
free  on  another  ground.  But  in  a  subsequent  case,  in  Ala- 
bama, where  a  slave  who  had  found  lost  property  delivered  it 
to  the  defendant,  it  was  held  that  the  master  of  the  slave 
might  maintain  trover ;  on  the  ground  that  the  possession  of 
a  slave  is  the  possession  of  his  master,  and  that  the  special 
property  as  finder  having  been  vested  in  the  plaintiff  by  the 
act  of  his  slave  in  taking  possession  of  the  lost  parcel,  could 
not  be  devested  by  any  after  act  of  the  slave,  {v)  It  seems 
to  have  been  held  that  a  party  who  has  dealt  with  a  slave  as 
free  is  afterwards  estopped  from  setting  up  his  slavery  in 
avoidance  of  the  contract  thus  entered  into ;  [w)  but  there  is 
room  for  much  doubt  as  to  the  nature  and  extent  of  this 
estoppel. 

it  is   meant  whatever  they   absolutely  all  civil  concerns  whatever.'    Cooper's 

acquired  by  gratuity,  &c.,  of  others ;  and  Justinian,  416,  in  notis." 
so  I  should  hold  in  relation  to  our  slaves.        («)  Hall  v,  MuUin,  5  H.  &  Johns. 

But  it  does  not  follow  from  thence  that  190. 

the  master  could  sue  in  his  own  name,        (v)   Brandon    v.    Planters  Bank,   1 
to  compel  the  performance  of  an  execu-  Stew.  (Ala.)  320.    With  respect  to  the 
toj-y  contract.     On  the   contrary,  it  is  law  in  Louisiana,  see  Voisain  v.  Clou- 
said  '  they  could  not  plead   or  be  im-  tier,  3  Louis.  170. 
pleaded,  for  they  were  excluded  from        {w)  Grounx  v.  Abat,  7  Louis.  R.  17. 

[350] 


CH.   XXI.]  SLAVES.  *339 

As  we  have  seen,  it  is  a  general  principle  that  a  slave  can- 
not contract  with  his  master,  (x)  In  Louisiana,  but,  it  is 
believed,  in  no  other  State,  the  exception  is  made  of  a  con- 
*  tract  for  emancipation  ;  such  a  contract  being  there  enforce- 
able at  the  instance  of  the  slave,  (y)  It  was  once  held  that 
no  contract  by  the  master  with  a  third  person  for  the  slave's 
benefit  could  be  enforced ;  (z)  but  the  better  opinion  seems 
to  be  that  a  contract  of  that  kind,  made  for  consideration,  is 
valid,  (a)  and  specific  performance  may  be  enforced  in  equity 
by  the  party  with  whom  it  is  made,  (b)  Where  a  slave 
was  sold  for  a  term  of  years,  with  a  power  to  the  vendee  to 
emancipate  him  at  the  end  of  the  term,  or  before,  and  the 
vendee  executed  a  deed  of  manumission  accordingly,  it  was 
held  that  the  defendant  who  had  purchased  from  the  vendor 
after  the  sale,  though  previous  to  the  execution  of  the  power, 
could  not  defend  against  the  negro's  claim  of  freedom,  (c) 


SECTION  VI. 

THE   PECULIUM. 

While  it  is  true  in  a  general  sense  that  all  that  a  slave 
possesses  belongs  to  his  master,  the  law,  as  well  as  usage 
seems  to  recognize  that  slaves  in  this  country,  as  in  ancient 
Rome,  may  have  certain  private  property  which  their  mas- 
ters cannot  appropriate.     Such  property  is  called  the  slave's 

(,r)  Ketletas  r.  Fleet,  7  Johns.  324,  tracted  when  he   acquired   his   slave." 

and  Tom's  case,  5  Johns.  365,  if  under-  Martin,   J.,  in   Poydras  v.  Mourain,  9 

stood  as  cases  of  grants  of  freedom  per-  Louis.  R.  505. 

feet  and  complete  at  the  time  of  exe-        {b)  It  was  so  held  in  Thompson  v. 

cution,  but  to  take  effect  in  enjoyment  Wilmot,  1  Bibb,  422.     There  the  plain- 

in  futuro,  are  not  inconsistent  with  this  tiff  had  in  Maryland  sold  the  slave  in 

principle.  question   to   the    defendant,  who   was 

(j/)  Marie  u.  Avart,  6  Mart.  732 ;  Civ.  about  removing  to   Kentuck)',  on   the 

Code  of  Louis.  Art.  174,  1783.  condition   that  the   purchaser    shotild 

(s)  Beall  w.  Joseph,  Ilardin,  51.  emancipate   him   in  seven  years;  and 

(o) '•  So  far  as  regards  the  slaves,  the  the  defendant   signed  and  delivered  a 

power  of  the  master  is  indeed  absolute,  memorandum  of  his  agreement  to  eman- 

Thc  slave  cannot  resist,  or  be  heard  if  cipate.      After  the    expiration   of    tlie 

he  complain  of  the  abuse  of  this  power ;  time,  specific  performance  was  decreed 

but  in  relation  to  other  persons,  nothing  in  Kentucky  upon   the   prayer  of  the 

prevents  the   master  from  being  com-  vendor. 

polled  or  coerced  to  comply  with  his        (c)  Negro  Cato  v.  Howard,  2  11.  & 

engagements  as  vendee,  which  he  con-  Johns.  323. 

[351] 


340*  THE   LAW   OF   CONTRACTS.  [bOOK   I. 

pecnlium.  This  term,  as  somewhat  vaguely  defined  in  the 
civil  code  of  Louisiana,  is  the  sum  of  money  or  portion  of 
movable  goods  of  which  the  master  of  a  slave  has  thought 
fit  to  allow  him  the  enjoyment,  [d)  Notwithstanding  the 
*peculium  thus  depends  originally  upon  the  license,  or  grant 
and  license,  of  the  master,  it  would  appear  (though  we  speak 
very  doubtfully  upon  this  point,)  that  a  revocation  of  the 
license  does  not  devest  the  peculium  acquired  under  it.  It 
has  been  held  in  South  Carolina  that  if  the  master  of  a  negro 
permit  him  to  hire  himself  out,  upon  condition  of  paying  him 
certain  stipulated  wages,  all  he  makes  and  saves  beyond 
such  wages  shall  be  at  his  own  disposal,  (e)  By  the  law  of 
Louisiana,  slaves  are  entitled  to  the  fruits  of  their  Sunday 
labor ;  and  even  their  masters,  if  they  employ  them  on  that 
day,  are  bound  to  remunerate  them.  (/)  Jn  other  Southern 
States,  as  we  understand,  slaves  are  by  custom  allowed,  be- 
sides the  Sabbath,  certain  holidays  in  the  course  of  the  year, 
and  their  earnings  on  these  days,  whether  received  from  their 
masters  (who  have  a  kind  of  preemptive  claim  to  their  ser- 
vices,) or  from  others,  go  to  their  own  use.  Possibly  out  of 
this  custom  may  have  grown  a  right  which  the  law  would 
recognize  and  enforce;  but  we  apprehend  that  the  matter 
rests,  very  generally  at  least,  in  the  mere  liberality  of  the 
master. 


SECTION  VII. 

OF   THE   MARRIAGE   OF   SLAVES. 

The  disability  of  the  slave  to  contract  seems  to  extend 
even  to  the  contract  of  marriage.     It  has  been  distinctly  held 

(d)  Civ.  Code  of  Louis.  Art.  175.  ground  that  the  purchase  enured  for  his 

(e)  Guardian  of  Sally  v.  Beatv,  1  benefit,  and  that  the  subsequent  gift  of 
Bay,  260.  This  was  a  case  very  re-  freedom  was  a  nullity.  But  the  court 
markable  in  its  circumstances.  The  declared  the  girl  free,  and  enounced  the 
negro,  a  woman,  with  whom  the  mas-  doctrine  in  the  text. 

ter  had  made  the  agreement,  with  rare  (f)  Rice  v.  Cade,  10  Louis.  R.  294: 

generosity  disposed  of  her  surplus  earn-  and  in  this  case  it  was  held  that  a  raas- 

ings  in  purchasing  a  negro  for  whom  ter  not   requiring   the   services   of  his 

she  felt  a  friendly  attachment,  and  to  slaves  on  Sunday,  and    not   retaining 

whom  she  thereupon  gave  her  freedom,  them  on  his  plantation,  impliedly  per- 

Her  own  master  claimed  the  girl  on  the  mits  them  to  hire  themselves  to  others. 

[352] 


CH.   XXI.]  SLAVES.  *341 

that  the  marriage  usual  in  Slave  States,  which  is  only  co- 
habitation with  consent  of  the  master,  is  not  a  legal  marriage. 
Chancellor  Kent  (g-)  quotes  from  a  case  in  which  this  is  de- 
cided, (h)  words  which  state  this,  and  so  refer  it  to  the  want 
*  of  the  legal  formalities,  as  to  suggest  the  inference  that  it  is 
this  want  which  makes  the  marriage  void.  But,  in  another 
part  of  this  case,  it  is  put  quite  as  much  on  the  ground  of 
their  inability  to  contract.  There  are  statutes  which  speak 
of  their  marriage  ;  but  not  in  such  a  way  as  to  declare  such 
marriage  a  legal  one,  carrying  all  the  incidents  of  marriage. 
These  incidents  seem  to  us  so  inconsistent  with  the  condition 
of  slavery,  that  we  do  not  see  how  any  ceremonies,  civil  or 
religious,  could  make  such  marriage  legal,  (i)  There  may 
be  usages  or  statutory  provisions  regulating  this  matter 
which  we  have  not  found ;  but  so  far  as  we  can  learn  the 
law  on  this  subject,  we  think  that  a  slave  cannot  be  guilty  of 
adultery,  when  this  crime  can  only  be  committed  by  a  mar- 
ried person;  nor  of  polygamy  ;  nor  be  held  liable  on  a  wife's 
contracts,  or  for  necessaries  supplied  to  her;  nor  made  incom- 
petent as  a  witness  on  the  ground  of  the  relation  of  marriage. 
How  far  all  this  may  be  modified  by  the  consent  of  the 
owner  may  be  doubtful ;  but  we  do  not  see  that  even  such 
consent  could  make  the  marriage  altogether  a  legal  marriage, 
and  invest  it  with  all  the  rights,  duties,  and  relations  of  mar- 
riage, unless  it  was  such  consent  and  under  such  circumstances 
as  made  it  operate  as  a  manumission,  as  in  the  case  of  a 
devise  to  a  slave. 

{(/)  2  Kent's  Com.  SS.  consent  of  their  masters  they  may  mar- 

{h)  State  V.   Samuel,  2  Dev.  &  Batt.  '■>\^"'^   '^'f  'T'''^  P°^^'°V  *«  "Sf  °  ^% 

177,181.     Sec  Hall  v.  Mullin,  5  Har.  such  a  contract  or  connection  as  that  of 

&  Johns.  193  ;  and  Jackson  v.  Lervey,  ^^'^''^S^  ^^"ot  "^^  doubted  ;  but  whilst 

5  Cow  39"  • '  in  a  state  oi  slavery  it  cannot  produce 

any  civil  effect,  because  slaves  are  de- 

(i)  In  Girod  v.  Lewis,  6  Slart.  559,  prived  of  all  civil  rights.    Emancipation 

the  question   was  wdiether  a  marriage  gives  to  the  slave  his  civil  rights  ;  and  a 

during   slavery    ])roduces   after   manu-  contract  of  marriage,  legal  and  valid  by 

mission  the  civil  effects  resulting  from  the  consent  of  the  master  and  moral  as- 

the  contract  of  marriage  between  free  sent  of  the  slave,  from  the  moment  of 

persons.     Mathews,   J.,    delivering   the  freedom,  although  dormant  during  the 

opinion   of  the   court,   said:  —  "It   is  slavery,  produces  all  the  effects  which 

clear  that  slaves  have  no  legal  capacity  result  from  such  contract  among  free 

to   assent  to  any  contract.     With  the  persons." 

30*  [353] 


342*  THE  LAW  OF   CONTRACTS.  [BOOK  I. 


SECTION  VIII. 
EMANCIPATION. 

Emancipation  is  the  donation  to  a  slave  of  his  value,  (j) 
When  a  slave  is  emancipated  by  will  his  freedom  is  a  spe- 
*  cific  legacy  to  him.  (k)  A  bequest  of  property  to  a  slave, 
by  his  master,  confers  freedom  by  implication.  (/)  It  would 
seem  that  any  person  may  emancipate,  who,  if  he  did  not 
set  the  slave  free,  would  have  a  right  to  hold  him  forever 
against  all  the  world ;  and  accordingly  that  where  the  party 
manumitting  had  possession  long  enough  to  bar  an  action 
by  the  rightful  owner  against  himself,  the  slave  may  equally 
rely  upon  the  provisions  of  the  statute  of  limitations,  (m) 
The  inequitableness  of  a  contrary  doctrine  is  obvious ;  for 
it  would  deny  to  the  slave,  purchasing  himself,  the  privilege 
which  any  other  purchaser  would  enjoy.  On  the  other  hand, 
a  rightful  owner,  whose  claim  is  barred  by  the  statute  of  limit- 
ations, has  no  power  to  emancipate,  (w)  It  has  even  been 
made  a  question  whether  a  man  may  execute  a  valid  deed 
of  manumission  to  his  slave,  while  another  party  is  holding 
the  slave  adversely,  though  without  a  sufficient  length  of  pos- . 
session  to  bar  an  action,  (o) 

The  mode  of  emancipation  is  variously  regulated  by  sta- 
tutes. It  seems,  however,  to  be  everywhere  agreed  that  all 
that  is  done  towards  a  complete  emancipation  is  totally 
without  effect,  until  the  final  act,  whatever  it  may  be,  is  per- 
formed ;  and  consequently,  so  long  as  such  final  act  remains 
unperformed,  the  owner  may  revoke  his  consent  to  manumit, 
and  no  inchoate  right  is  vested  in  the  slave  which  even  a 
court  of  equity  can  recognize,  (p) 

(  /)  Martin,  J.,  Prudence  v.  Bermodi,     190  ;  Le  Grand  v.  Darnall,  2  Pet.  664. 

1  Louis.  R.  241.  Contra,  Campbell  v.   Campbell,  8  Eng. 
(Ic)  And  therefore   partakes    of   the     (Ark.)  .519. 

privilege  of  specific  legacies  with  re-  (7?i)  The  point  ■svas  left  undecided  in 

spect   to   questions   of  abatement   and  Kitty  v.  Fitzhugh,  4  Eand.  600,  607. 

contribution.     Hammond  v.  Hammond,  (n)  Givens  v.  Manns,  6  Munf.  191. 

2  Bland,  306,  314.     And  see  Williams  (o)  Ibid. 

V.  Ash.  1  How.  Sup.  Ct.  1.  (p)  Henry  v.   Nunn's   Heirs  ,  11    B. 

(I)  Hall  V.   MuUin,   5   H.   &  Johns.    Mon.   239  ;  Wicks   v.    Chew,   4   H.  & 

[354] 


CH.  XXI.]  SLAVES.  *343 

There  may  be  an  emancipation  to  take  effect  upon  a  con- 
tingency. A  testatrix  bequeathed  certain  slaves,  adding  the 
condition  that  if  the  legatee  carried  them  out  of  the  State,  or 
sold  them  to  any  one,  her  will  was,  in  either  event,  that  they 
should  be  free ;  the  legatee  sold  one  of  the  slaves,  who  there- 
upon filed  a  petition  for  his  freedom,  and  it  was  held,  on 
error,  by  the  Supreme  Court  of  the  United  States,  that  he 
*was  free;  the  qualifying  clause  of  the  bequest  not  being  a 
restraint  on  alienation  inconsistent  with  the  legatee's  right  of 
property,  but  a  conditional  limitation  of  freedom,  which  took 
effect  the  moment  the  negro  was  sold,  (q)  Conditions  sub- 
sequent to  emancipation  are,  however,  void,  and  the  slave 
takes  his  freedom  absolutely,  (qq) 

Slaves  cannot  be  emancipated  to  the  prejudice  of  credit- 
ors—  by  statute  in  some  States,  and,  we  presume,  by  com- 
mon law  or  the  Stat.  13  Eliz.,  where  State  enactments  do 
not  exist,  (qr)  Under  a  statutory  provision  of  that  kind,  it 
has  been  held  that  the  intention  of  a  testator,  distinctly  mani- 
fested, to  emancipate  his  negroes,  has  the  effect  to  charge  his 
real  estate  with  the  payment  of  his  debts,  without  express 
word  ;  (r)  that  the  creditors,  in  case  the  personal  assets  prove 
insufficient,  must  proceed  against  the  real  estate,  by  such 
means,  legal  or  equitable,  as  may  be  open  to  them  ;  (s)  and 
that  the  burden  of  proof  is  upon  them  to  show  the  insuffi- 
ciency of  the  whole  assets,  real  and  personal,  (t)  It  has  also 
been  decided,  under  the  same  statutes,  that  the  inquiry  as  to 
the  sufficiency  of  assets  is  not  confined  to  the  condition  of 
the  estate  at  the  time  of  the  testator's  death ;  but  if  the 
assets,  although  then  sufficient,  afterwards,  in  the  due  course 
of  administration,  without  any  default  of  the  administrator, 
and  before  his  assent  to  the  manumission,  become  inade- 
quate to  the  payment  of  the  debts,  the  slaves  shall  be  subject 

Johns.  543.    With  regard  to  Ketlctas  v.  (qr)   Uniou    Bank  v.  Benham,    23, 

Fleet,  7  Johns.  324,  and  a  previous  case  Ala.  143. 

in  New  York,  see  ante,  p.  *339,  note  (r.)  (?■)  Fenwick  v.  Chapman.  9  Pet.  461  ; 

{(])  Williams  u.  Ash.  1  How.  1.     See  AUein  v.  Sharp,  7  G.  &  J.  96. 

also  Tom's  case,  5  Johns.  365,  and  Kct-  (s)  Fenwick  v.  Chapman,  9  Pet.  401 ; 

letas  V.  Fleet,  7  Johns.  324.     Qucere  as  AUein   v.  Sharp,  7   G.  &  J.  96.     The 

to  Cooke  V.  Cooke,  3  Litt.  238.  case  of  Negro  George  v.  Corse,  2  H.  & 

(qq)  Forward  v.   Thamer,   9   Gratt.  Gill,  1,  seems  to  be  overruled. 

537;  Spencer  v.  Negro  Dennis,  8  Gill,  (t)  AUein  v.  Sharp,  7  G.  &  Johns. 

314.  96. 

[355] 


344*  THE   LAW   OF   CONTRACTS.  ,  [BOOK  I. 

to  the  claims  of  the  creditors ;  and,  on  the  other  hand,  if  the 
assets,  insufficient  at  the  testator's  death,  subsequently  in . 
due  course   of  administration  become  sufficient,  the  manu- 
mission shall  be  consummated,  (u)     An  executor  who  has 
permitted  the  manumitted  slaves  to  go  at  large  as  free,  can- 
not recall   the  assent  he   has   thus  given  to  the  bequest  of 
freedom,  (v)     Yet  an  executor  who  has  made  an  admission 
of  the  sufficiency  of  assets,  whereby  a  judgment  of  freedom 
*  has  been  obtained  in  an  action  at  law  against  him,  may,  it 
seems,  obtain  relief  in   equity,  (iv)     And   no  judgment  of 
freedom  recovered  by  the  slaves  in  an  action  against  the  ex- 
ecutor, whether  the  consequence  of  his  admission  of  assets 
or  not,  concludes  the  creditors  from  showing,  in  equity,  that 
the  assets  are  in  point  of  fact  insufficient,  (x)     It  seems  that 
in  any  case  where  the  assets  are  found  insufficient,  a  decree 
of  a  court  of  equity  must  be  obtained  for  the  sale  of  the 
emancipated  negroes,  either  for  life  or  for  a  term  of  years, 
as  the  circumstances  of  the  case  may  require.  (?/)     The  right 
of  the  testator's  widow  to  her  life  interest,  in  the  nature  of 
dower,  in  a  share  of  the  slaves,  may  also  be  an  obstacle  to 
the  emancipation  by  the  will.     Statutory  provision  is  some- 
times made  for  the  satisfaction  of  this  claim  of  hers,  like  the 
claims  of  creditors,  out  of  other  property  left  by  the  testator. 
It  appears  to  be  a  part  of  the  policy  of  the  slave-holding 
States  to  discourage  the  increase  within  their  territory,  respec- 
tively, of  the  free  negro  population.  (?///)    By  the  Constitution 
of  Virginia,  as  recently  revised,  it  is  put  out  of  the  power  of 
the  legislature  to  permit  emancipation  unaccompanied  by 
.removal.     In  other  States,  statutes,  more  or  less  restrictive, 
have  been  enacted.     The  policy  of  States  with  respect  to  the 
increase  of  the  slave  population  has  been  somewhat  fluctuat- 
ing.    A  prohibition  upon  the  importation  of  slaves  as  me?'- 

(li)  Wilson  V.  Barnet,  9  G.  &  Johns.  (ic)  See  Penwick  v.  Chapman,  9  Pet. 

158  ;  where  the  court  also  ruled  that  the  461,  481. 

value  of  the  services  of  the  manumitted  ,^  ^11^;,^  ^.    ^^          -  q_  g,  j^img. 

slaves,  while  m  the  possession  ot   the  gg      j^enwick   v.    Chapman,  9   Peters, 

personal  representative,  is  to  be  estima-  ^gj_ 

ted  in  their  favor,  as  a  part  of  the  per-  /\    .n-           ci           -^   r^    p   t  1 

sonal  estate  of  the  testator.  0/)  ^l^em  v.  Sharp,  7   G.  &  Johns. 

(v)  Fenwick  v.  Chapman,  9  Peters,  9^- 

461.  {jjy)  Green  v.  Lane,  8  Ire.  Eq.  70. 

[356] 


CH.  XXI.] 


SLAVES. 


chanclise  is  indeed  in  force  almost  everywhere;  [z)  but  it 
seems  now  to  be  universally  permitted  to  persons  to  bring 
into  the  State,  for  their  own  service,  and  not  for  sale,  slaves 
of  whom  they  were  [bond  fide)  owners  in  other  States,  [a) 

*  The  validity  of  an  emancipation  depends  upon  the  law  of 
the  State  where  the  negroes  emancipated  are  residing  at 
the  time — they  being  so  resident  by  the  consent  of  their 
owner,  [h)  And  (in  subordination  to  this  principle,)  the 
courts  of  any  State  will,  in  general,  enforce  an  emancipation 
which  owes  its  effect  to  the  laws  of  any  other  State,  (c) 

SECTION  IX. 

OF    SLAVES   FOR   A   LIMITED    TIME,   OR   STATU-LIBERI. 

The  condition  of  persons  held  in  slavery,  but  entitled  to 
become  free  at  some  future  time,  differs  in  some  of  its  inci- 


(2)  By  the  constitution  of  Missis- 
sippi, as  construed  by  the  courts  of  that 
State,  all  slaves  brought  into  the  State 
as  merchandise  or  for  sale  are  ipso  facto 
free,  without  any  legislative  enactment 
in  aid  of  the  constitutional  provision. 
See  Bricn  v.  Williamson,  7  How.  (Miss.) 
14;  Groves  i-.  Slaughter,  15  Pet.  449; 
1  Kent,  Comm.  439. 

(a)  The  law  in  Maryland  and  Vir- 
ginia was  once  otherwise ;  and  while 
the  statute  of  the  former  State  prohibit- 
ing the  importation  was  in  force,  it  was 
held,  that  if  a  slave  having  the  license 
of  his'owner  to  go  at  large,  for  the  pur- 
pose of  earning  money  to  purchase  his 
freedom,  according  to  an  agreement,  in 
the  exercise  of  that  licence  go  into  ano- 
ther State,  reside  there  for  a  time,  then 
return,  and  his  owner  resume  posses- 
sion of  him,  this  is  a  new  importation, 
and  under  a  statute  setting  free  import- 
ed slaves,  he  is  entitled  to  his  freedom. 
Bland  v.  Dowling,  9  G.  &  -Jolms.  19. 

(h)  Hunter?'.  Fulcher,  1  Leigh,  172; 
Simmins  v.  Parker,  4  Mart.  N.  S.  200, 
205. — But  an  emancipation  in  another 
State,  (liy  the  operation  of  the  law  of 
that  State,)  during  a  temporary  sojourn 
there,  will  not,  it  seems,  be  regarded ; 
there  must  be  a  residence.  Lewis  r. 
Fullerton,  1  Rand.  15,  as  construed  in 
Hunter  I'.  Fulcher,  1  Leigh,  172.     And 


see  Mary  v.  Brown,  5  Louis.  An.  K.  269  ; 
Mercer  v.  Gilman,  11  B.  Mon.  210. 
As  to  the  effect  of  the  mere  fact  of 
the  slave's  residence  for  a  time  in  a 
State  whose  laws  do  not  tolerate  sla- 
very, no  statute  in  that  State  enacting 
tliat  absolute  freedom  shall  be  the  con- 
sequence of  such  residence,  see  Luns- 
ford  V.  Coquillon,  2  Mart.  N.  S.  401  ; 
Tiiomas  v.  Generis,  16  Louis.  R.  433; 
Josephine  v.  Poultney,  1  Louis.  An.  II. 
329  ;  Marie  Louise  v.  Marot,  9  Louis.  R. 
473  ;  and  the  great  case  of  the  Slave 
Grace,  2  Ilagg.  Ad.  94,  before  Lord 
Stowell,  which  seems  to  be  opposed  to 
the  doctrine  of  the  Louisiana  decisions. 
In  1 846,  and  subsequent  to  the  Louisiana 
cases  above  cited,  a  statute  was  enacted 
in  that  State  upon  this  subject ;  and  for 
the  construction  of  it  see  Eugene  v. 
Preval,  2  Louis.  An.  180;  Conant  v. 
Guesnard,  5  Louis.  An.  696.  See  also 
upon  this  subject,  Strader  v.  Graham,  5 
B.  Monr.  173;  Mercer  v.  Gilman,  11 
B.  Monr.  210;  Vaughan  i-.  Phebe,  1 
Mart.  &  Yerg.  1  ;  Blackmore  v.  Phill, 
7  Yerg.  452;  Jackson  v.  Bullock,  12 
Conn.  38. 

(c)  Hunter  V.  Fulcher,  1  Leigh,  172; 
Rankin  v.  Lydia,  2  A.  K.  Marsh.  467. 
475;  Harry  v.  Decker,  AValk.  36.— 
The  language  of  some  cases  is  indeed 
such  as  to  admit  of  the  inference  that  a 

[357] 


346*  THE  LAW   OF   CONTRACTS.  [BOOK  I. 

dents  from  ordinary  slavery.  Such  persons  are  denominated 
in  the  Roman  law,  and  in  the  law  of  Louisiana,  statu- 
liberi.  (d)  By  the  civil  code  of  that  State  they  are  capable 
of  taking  property  by  testament  or  donation,  though  not  by 
inheritance ;  and  property  given  or  bequeathed  to  a  statu- 
liber  must  be  preserved  for  him,  under  the  administration  of 
a  curator,  in  order  to  be  delivered  to  Mm  in  kind  when  his 
emancipation  shall  take  place,  (e)  If  he  die  before  the  time 
*  for  his  emancipation,  the  gift  or  legacy  reverts  to  the  do- 
nor. (/)  Possibly,  provisions  upon  the  subject  (though  less 
complete,)  are  to  be  found  in  the  statute  books  of  other 
States. 

It  seems  that,  without  the  aid  of  a  statute,  a  court  of 
equity  will  not  enjoin  the  master  of  a  slave,  who  is  entitled 
to  his  freedom  at  a  future  day,  from  removing  him  out  of 
the  State;  —  at  least  such  an  injunction  will  not  be  granted 
upon  the  prayer  of  the  slave  himself,  (g-) 

What  is  the  condition  of  the  children  of  a  statu-libera,  or 
female  slave  entitled  to  freedom  at  a  future  time  ?  No  ques- 
tion in  this  whole  subject  is  of  more  interest,  and  it  has  re- 
ceived the  consideration  due  to  its  consequence.  On  the  one 
side  it  has  been  contended  that  the  mother  in  such  a  case, 
though  enjoying  the  prospect  of  freedom,  (which,  indeed, 
may  never  be  realized,  as  she  may  die  before  the  day,)  is 
still  a  slave,  and  can  only  communicate  to  her  offspring  born 
during  the  interim  her  present  status  ;  and  that  they  therefore 
are  slaves  absolutely.  And  so  the  decisions  have  been  ;  [h) 
though  there  are  obviously  very  strong,  if  not  stronger  rea- 


judyment  of  freedom,  in   the  State  by  refused. —  In  Moosa  r.  AUain,  4  Mart, 

whose  laws  the  emancipation  is  alleged  N.  S.  102,  Martin,  J.,  said,  in  relation 

to  take  effect,  might  be  required  by  the  to  the  condition  of  a  sta^M-Z/te-;  —  '■  Per- 

court  of  the  other  State ;  but  it  is  believ-  haps  the  slave  may  be  allowed  the  aid 

ed  that  the  doctrine  of  the  text  would  of  the  magistrate,  in  case  of  an  evident 

be  followed  at  this  day.     See  Mahoney  attempt  to  transport  him  out  of  the  ju- 

V.  Ashton,  4  II.  &  McH.  29.5  ;  but  com-  risdiction  of  the  State,  in  order  to  frus- 

pare  Stewart  v.  Oakes,  .5  H.  &  Johns,  trate  his  hope  of  emancipation,  under 

107,  note,  and  Davis  v.  Jaquin,  5  II.  &  the  will   and   sale,  by  compelling   the 

Johns.  100.  purchaser  to  give  security  for  the  forth- 

((/)  Catin  D.  D'Orgcnoy,  8  Mart.  219.  coming  of  the   slave   in  due  time,   or 

(e)  Louis.  Civ.  Code,  Art.  193.  otherwise." 

(/)  Louis.  Civ.  Code,  Art.  195.  (h)    Maria    v.    Surbaugh,    2    Rand. 

{g)  Negro  Harriett  v.  Ridgeley,  9  G.  228,  —  where  a  very  elaborate  opinion 

&  Johns.  174,  where  an  injunction  was  was  given  by  Green,  J, :  Catin  v.  D'Or- 

1358] 


CH.  XXI.] 


SLAVES. 


347 


sons  to  the  contrary,  (i)  It  has  been  said  (j)  that  it  is  not 
even  in  the  power  of  the  original  owner,  at  the  time  he 
grants  the  freedom  of  the  mother  in  futuro,  to  dispose  of  her 
unborn  children,  and  to  give  them  their  freedom,  either  at 
birth  or  at  a  time  subsequent.  However,  statutes  have  been 
passed  in  at  least  three  States,  providing  for  the  case  more 
equitably,  (k) 

*  There  is  a  case,  closely  allied  to  that  of  a  grant  of  freedom 
in  futuro^  but  distinguishable  from  it,  and  capable  of  giving 
rise  to  very  different  consequences.  This  is  a  grant  of  imme- 
diate freedom,  accompanied  with  a  reservation  of  service  for 
a  time  specified,  and  making  such  service  the  condition  of 
the  emancipation.  It  has  been  held  that  the  child  of  a  negro 
woman,  born  during  the  time  of  service  so  reserved,  is  free 
from  its  birth.  (/)  It  seems  that  such  a  reservation  of  service 
is  not  enforceable  by  the  master  against  the  woman,  (m) 


•xenoy,  8  Mart.  218;  McCutchen  v. 
Marshall,  8  Pet.  220  ;  Ned  v.  Beal,  2 
Bibb,  298.' 

(«)  Compare  that  part  of  the  opinion 
of  Jucl{,'e  Green,  in  Maria  v.  Surbaugh, 
2  Rand.  229-31,  in  -which  he  examines 
the  argument  for  the  mother  and  child- 
ren, with  the  view  taken  of  the  nature  of 
a  bequest  of  freedom  by  Taney ^  C.  J.,  in 
Williams  v.  Ash,  1  How.  14. 

(j)  See  per  Green,  J.,  Maria  v.  Sur- 
baugh, 2  Rand.  228,  235.  But  see  the 
case  of  Negro  Jack  v.  Hopewell,  adjudg- 
ed by  the  Court  of  x\ppeals  of  Mary- 
land in  the  year  1784,  and  reported  in 
6  H.  &  Johns.  20,  note. 

[h)  The  Maryland  statute,  1809,  ch. 
171,  enables  the  owner  of  the  mother  to 
declare,  in  the  deed  or  will  by  which 
he  prospectively  manumits  the  mother, 
what  shall  be  the  condition  of  her  child- 
ren born  in  the  moan  while.  In  the  ab- 
sence of  such  a  declaration  by  him,  it  is 


enacted  that  the  children  shall  be  slaves. 
Chew  V.  Gary,  6  H.  &  Johns.  525,  was 
a  decision  under  this  statute. — The  lan- 
guage of  the  Virginia  statute  is :  "  The 
increase  of  any  female  so  emancipated 
by  deed  or  will  hereafter  made,  born 
between  the  death  of  the  testator  or  the 
record  of  the  deed,  and  the  time  when 
her  right  to  the  enjoyment  of  her  free- 
dom arrives,  shall  also  be  free  at  that 
time,  unless  the  deed  or  will  otherwise 
provides."  Rev.  Code  1849,  ch.  103,  § 
10.  —  In  Louisiana  the  provision  is  as 
follows  : — '•  The  child  born  of  a  woman, 
after  she  has  acquired  the  right  of  be- 
ing free  at  a  future  time,  follows  the 
condition  of  its  mother,  and  becomes 
free  at  the  time  fixed  for  her  enfran- 
chisement, even  if  the  mother  should 
die  before  that  time."  Civ.  Code,  Art. 
196. 

(/)  Isaac  V.  West,  6  Rand.  652. 

(rii)  See  per  Green,  J.,  Isaac  v.  West, 
6  Rand.  656.  657. 

[359] 


348  THE   LAAV   OF   CONTRACTS.  [eOOK   I. 


CHAPTER  XXII. 

OF    OUTLAWS,    PERSONS    ATTAINTED,   AND    PERSONS    EXCOMMUNI- 
CATED. 

The  process  of  Outlawry  was  common  in  England  under 
the  Saxon  kings.  By  it  a  person  was  placed  wholly  out  of 
the  protection  of  the  law,  so  that  he  was  incapable  of  bring- 
ing any  action  for  redress  of  injury  ;  and  it  also  worked  a 
forfeiture  of  all  goods  and  chattels  to  the  king.  Until  some 
time  after  the  conquest  it  was  confined  to  cases  of  felony ; 
but  then  it  was  extended  by  statute  to  all  actions  for  tres- 
passes vi  et  armis.  By  later  statutes  it  has  been  extended 
to  other  civil  actions.  An  outlaw  might  be  arrested  by  the 
writ  of  capias  utlagatum,  and  committed  until  the  outlawry 
was  reversed.  But  this  reversal  was  granted  on  any  plausi- 
ble ground,  if  the  party  came  into  court  himself  or  by  attor- 
ney ;  the  process  being  used  in  modern  times  merely  to  com- 
pel appearance,  (n)  In  some  of  our  older  States  process  of 
outlawry  was  permitted  and  regulated  by  statute ;  but  it 
never  had  much  practical  existence  in  this  country,  and  is 
now  wholly  disused,  (o) 

Attainder,  by  the  common  law,  was  the  inseparable  con- 
sequence of  every  sentence  of  death.  Attainder  for  treason 
worked  a  forfeiture  of  all  estates  to  the  king,  and  such  "  cor- 
ruption of  blood  "  that  he  could  neither  inherit,  nur  could 
any  one  inherit  from  him ;  he  was  utterly  deprived  of  all 
rights,  and  wholly  incapacitated  from  acting  under  the  pro- 
tection of  the  law,  either  for  himself  or  for  another.  In  the 
words  of  Blackstone,  "  the  law  sets  a  note  of  infamy  upon 
him,  puts  him  out  of  its  protection,  and  takes  no  further  care 
of  him  than  to  see  him  executed ;"  and  "  by  an  anticipation 

(n)  3  Bl.  Com.  284.  (o)  See  7  Dane's  Abr.  313. 

[3G0] 


CH.   XXII.]  OUTLAWS,   ETC.  349 

of  his  punishment  he  is  already  dead  in  law."  (p)  During 
the  conflicts  in  England  between  different  claimants  of  the 
throne,  and  between  the  sovereign  and  the  people,  this  tre- 
mendous engine  of  oppression  was  unsparingly  used,  and 
sometimes  under  circumstances  which  gave  to  it  the  charac- 
ter of  extremest  cruelty.  It  may  well  be  believed  that  such 
a  process  would  not  find  favor  among  us  either  when  we 
were  colonies,  or  after  we  had  become  States ;  and  it  has  no 
existence  here. 

Excommunication  expels  a  person  from  the  Church  of  Eng- 
land, and  as  the  civil  law  comes  in  aid  of  the  ecclesiastical 
power  of  that  country,  it  has  been  of  great  moment  there; 
and  as  it  worked  a  disability  almost  entire,  it  was  an  instru- 
ment of  great  power  in  the  hands  of  the  ecclesiastical  author- 
ities. But  in  this  sense  excommunication  can  have  no 
existence  in  this  country,  as  we  have  no  national  church,  re- 
cognized and  armed  by  the  civil  law.  We  have,  however, 
churches,  which  with  us  are  only  voluntary  associations  or- 
ganized for  religious  purposes.  As  such  they  are  recognized 
and  protected  by  the  law.  They  must  have  the  right  to  de- 
termine as  to  their  own  membership,  and  to  provide  for  this 
by  forms  and  by-laws,  which  if  they  contradict  no  principles 
or  provisions  of  law,  and  interfere  with  no  personal  rights, 
would  doubtless  be  regarded  by  the  courts,  (pp)  But  all 
questions  which  come  up  in  relation  to  the  rights  or  contracts 
of  a  person  severed  from  such  society,  by  an  act  of  "  excom- 
munication," would  be  governed  by  the  general  principles  of 
the  law  of  property,  or  of  the  law  of  contracts. 

(p)  4  Bl.  Com.  380.  {pp)  Farnsworth  v.  Storrs,  5  Cush.  412. 

VOL.  I.  31  [3S1] 


BOOK  II. 


CONSIDERATION   AND    ASSENT. 


BOOK    II. 


CHAPTER  I. 

CONSIDERATION. 

Sect.  I. —  The  Necessity  of  a   Consideration. 

A  PROMISE  for  which  there  is  no  consideration  cannot  be 
enforced  at  law.  This  has  been  a  principle  of  the  common 
law  from  the  earliest  times,  {q)  It  is  said  to  have  been  bor- 
rowed from  the  Roman  law.     The  phrase  "  nudum  pactum  " 

—  commonly  used  to  indicate  a  promise  without  consider- 
ation—  certainly  was  taken  from  that  law;  but  it  does  not 
mean  with  us  precisely  what  the  Roman  jurists  understood 
by  it.  By  the  civil  law  gratuitous  promises  could  be  en- 
forced only  where  they  were  made. with  due  formality,  and 
in  prescribed  language  and  manner  ;  then  such  agreement  was 
a  "  pactum  verbis  prescriptis  vestitum "  and  where  such  pro- 
mise was  not  so  made  it  was  called  a  "  nudum  pactum,''^  (r) 
that  is,  nudum  because  not  vestitum.  But  an  agreement  thus 
formally  ratified  or  "  vestitum  "  was  enforced  without  reference 
to  its  consideration ;  whereas  a  "  nudum  pactum,^^  or  promise 
not  formally  ratified,  was  left  to  the  good  faith  of  the  pro- 
misor, the  law  refusing  to  aid  in  its  enforcement,  unless  the 

(7)  17  Ed.  4,  4,  pi.  4 ;  3  Hen.  6,  36,  Register  for  1854,  in  which  the  cases  on 

pi.  33 ;  Bro.  Abr.  Action  sur  le  Case,  40.  the  whole  topic  are  ably  collected. 

—  See  on  the  subject  of  Consideration  ar-  (r)  Vin.  Commen.  de  Inst.  lib.  3,  tit. 
tides  by  "E.L.  P."  in  the  March,  May,  14,  p.  659,  cd.  1755;  Ibidem,  lib.  3,  dc 
and  July  numbers  of  the  American  Law  verborum  obligationibus,  tit.  16,  p.  677  ; 

Cod.  Lib.  7,  tit.  52,  6th  ed.  Gothofred. 

31*  [365] 


354  THE  LAW  OF  CONTRACTS.  [BOOK  11. 

promisee  could  prove  a  distinct  consideration.  The  princi- 
ple of  this  is,  obviously,  that  if  a  contract  be  not  founded 
upon  a  consideration,  it  shall  not  be  enforced,  unless  ratified 
in  such  a  way  as  may  show  that  it  was  deliberate,  inten- 
tional, and  distinctly  understood  by  both  parties.  The  rule 
was  intended  to  protect  parties  from  mistaive,  inadvertence,  or 
fraud.  A  similar  rule  or  practice,  grounded  on  a  similar  pur- 
pose, prevails  on  the  continent  of  Europe ;  where  contracts 
which  are  properly  ratified  and  confirmed,  before  a  public  no- 
tary or  similar  magistrate,  are  valid  without  inquiry  into  their 
consideration ;  while  a  private  contract  can  be  enforced  only 
on  proof  of  a  consideration.  And,  indeed,  it  can  only  be  the 
same  principle  which  makes  reasonable  an  ancient  and  well- 
established  distinction  in  the  common  law,  by  virtue  whereof 
a  contract  under  seal  is  in  general  valid  without  reference  to 
the  consideration  ;  not  by  way  of  exception  to  the  rule  that 
no  promise  can  be  enforced  which  was  not  made  for  a  con- 
sideration, but  because,  as  it  is  said,  the  seal  implies  a  consider- 
ation. The  only  real  meaning  of  this  must  be,  that  the  act  of 
sealing  is,  —  as  it  was  in  fact  formerly  much  more  than  it  is 
now  —  a  deliberate  and  solemn  act,  implying  that  caution 
and  fulness  of  assent  which  the  rule  of  the  civil  law  was  in- 
tended to  secure,  {s) 

(s)  That  this  is  the  real  distinction  to  give  you  £20 ,  here  you  shall  have 

between  contracts  under  sealand  con-  an  action  of  debt  upon  this  deed,  and 

tracts  not  under  seal,  see  Plowd.A-rg.  in  the  consideration  for    my  promise    is 

Sharington  r.  Stratton,  Plow.  R.  308.  not  examinable:  it  is  sufficient  to  say  it 

"  Words,"  says  he,  "  pass  from  man  to  was  the  will  of  the  party  M'ho  made  the 

man   lightly   and  inconsiderately ;  but  deed."     See  2  Smith's  Leading  Cases, 

where  the  agreement  is  by  deed  there  is  456.     See    also  Morley  ?'.   Boothby,  3 

more  time  for  deliberation ;  for  when  a  Bing.  Ill ;  Fallowes  %■>.  Taylor,  7  T.R. 

man  passes  a  thing  by  deed,  first  there  477  ;  Shuhrick    r.    Salmond,    3    Burr, 

is  the  determination  of  the  mind  to  do  1639;  Foubl.   on  Eq.  Vol.    I,    p.  344, 

it ;  and  upon  that  he  causes  it   to  be  n.  a.  —  Some  writers  on  contracts  have 

written,  which  is  one  part  of  delibera-  said  that  specialties  do  not  require  a  con- 

tion,  and  afterwards  he  puts  his  seal  to  sideration  to  render  them  obligatory  at 

it,  which  is  another  part  of  deliberation ;  law ;  but  this  seems  to  be  somewhat  in- 

and  lastly  he  delivers  the  writing  as  his  accurate.     The  existence  of  a  considera- 

deed,  which  is  the  consummation  of  his  tion  seems  to  be  as  essential  in  the  case 

resolution;  so  that  there   is   great  do-  of  deeds  as  in  simple  contracts,  but  that 

liberation  used  in  the  making  of  deeds,  existence  is  conclusively  presumed  from 

for  which  reason  they  are  received  as  a  the   nature  of  the   contract.     It  seems 

lien  final  to  the  party,  and  are  adjudged  that   in  some  of  the  States   by  usage, 

to  bind  the  party,  without  examining  and  in  others  by  statute,   the  want  or 

upon  what  cause  or  consideration  they  failure  of  consideration  may  be  a  good 

were  made.    As  if  I,  by  deed,  promise  defence  against  an  action  on  a  sealed 

[366] 


CH.  I.] 


CONSIDERATION. 


355 


By  the  civil  law,  and  the  modern  continental  law,  the 
consideration  is  the  cause  of  the  contract.  This  principle  is 
quoted  and  apparently  adopted  by  Plowden  ;  and  it  has  been 
recently  acknowledged  by  high  judicial  authority,  and  the 
cause  distinctly  discriminated  from  the  7notive.  (t) 

Doubts  have  been  expressed  whether  a  contract  reduced  to 
writing  was  not  in  this  respect  the  same  as  one  under  seal,  (w) 
But  this  question  is  now  abundantly  settled  ;  and  both  in 
this  country  and  in  England  a  consideration  must  be  proved, 
where  the  contract  is  in  writing  but  not  under  seal,  as  much 
as  if  the  contract  were  oral  only,  (v)  The  exceptions  to  this 
rule  in  the  case  of  mercantile  negotiable  paper  are  considered 
elsewhere. 

It  is  a  general  rule,  that  where  this  consideration  is  ex- 
pressed in  a  written  contract  no  other  can  be  proved,  (iv) 


contract.  Sec  Gray  v.  Handkinson,  1 
Bay,  278 ;  State  v.  Gaillard,  2  Bay,  1 1 ; 
Swift  V.  Hawkins,  1  Dallas,  17;  Solo- 
mon V.  Kimrael,  5Binn.  232;  Case  v. 
Boughton,  11  Wend.  106;  Leonard  v. 
Bates,  1  Blackf.  173;  Coyle  v.  Fowler, 
3  J.  J.  Marsh.  473;  Beebles  v.  Stephens, 
1  Bibb,  500 ;  Walker  v.  Walker,  13  Ire. 
L. 335. 

{t)  Thomas  v.  Thomas,  2  Q.  B.  K. 
851.  In  this  case  the  defendant  con- 
tended that  the  motive  with  which  an 
agreement  had  been  made  was  a  part  of 
the  legal  consideration,  and  that  the  de- 
claration ought  to  have  set  out  the  same 
with  the  other  considerations,  but  Patte- 
son,  J.,  said  :  —  "It  would  be  giving  to 
causa  too  large  a  construction  if  we 
were  to  adopt  the  view  urged  for  the 
defendant  ;  it  would  be  confounding 
consideration  with  motive.  Motive  is 
not  the  same  thing  with  consideration. 
Consideration  means  something  which 
is  of  some  value  in  the  eye  of  the  law, 
moving  from  the  plaintitF;  it  may  be 
some  beneiit  to  the  plaintiff,  or  some 
detriment  to  the  defendant ;  but  at  all 
events  it  must  be  moving  from  the 
plaintinr.  Now  tliat  which  is  suggested 
as  tlie  considci-ation  licre,  a  pious  re- 
spect for  the  wishes  of  the  testator,  does 
not  in  any  way  move  from  the  plain- 
tiff; it  moves  from  the  testator  :  there- 
fore, legally  speaking,  it  forms  no  part 
of  tlie  consideration."  See  also  Lilly 
/•.  Hays,  5  Ad.  &  El.  548;  Smith  on 


Cont.  p.  88,  note.  —  In  Mouton  v.  Noble, 
1  Louis.  An.  E.  192,  Eustis,  C.  J., 
said :  —  "  Civilians  use  the  word  cause, 
in  relation  to  obligations,  in  the  same 
sense  as  the  word  consideration  is  used  in 
the  jurisprudence  of  England  and  the 
United  States." 

(m)  Kann  v.  Hughes,  3  T.  R.  350,  n. 
a,  7  Bro.  P.  C.  550;  Tillans  v.  Van 
Mierop,  3  Burr.  16G3. 

(v)  Cook  V.  Bradley,  7  Conn.  57 ; 
Dodge  V.  Burdell,  13  Conn.  170;  Bean 
V.  Burbank,  16  Maine,  458  ;  Bcvcrleys 
V.  Holmes,  4  Munf.  95  ;  Brown  v. 
Adams,  1  Stew.  51 ;  Burnet  v.  Bisco, 
4  Johns.  235 ;  People  v.  Shall,  9  Cow. 
778  ;  Eoper  v.  Stone,  Cooke,  499  ; 
Clark  V.  Small,  6  Yerg.  418  ;  Perrine 
V.  Cheeseman,  6  Halst.  174.  —  The  con- 
sideration, however,  need  not  be  ex- 
pressed in  the  writing.  It  may  be 
proved  aliunde.  Tingley  v.  Cutler,  7 
Conn.  291  ;  Arms  v.  Ashley,  4  Pick. 
71 ;  Cummiugs  v.  Dennett,  26  Maine, 
397  ;  Mouton  v.  Noble,  1  Louis.  An.  R. 
192;  Thompson  v.  Blanchard,  3  Comst. 
335 ;  Patchin  i'.  Swift,  21  Verm.  292. 
The  admission  of  a  consideration  in  the 
writing  is  of  course  prima  facie  evidence 
of  its  existence.  Whitney  v.  Stearns, 
16  Maine,  394. 

(iv)  Schemerhorn  v.  Vanderheyden, 
1  Johns.  139  ;  Veacock  v.  McCall,  Gil- 
pin, 329  ;  Emery  v.  Chase,  5  Grecnl. 
232 ;  Howes  v.  Barker,  3  Johns.  506  ; 
Cutter  V.  Reynolds,  8  B.  Munroe,  596. 

[367] 


356 


THE    LAW   OF    CONTRACTS. 


[book  II. 


unless  there  are  words  which  indicate  other  considera- 
tions ;  (x)  for  this  would  be  an  alteration  of  the  contract  by 
evidence  aliunde.  The  same  rule  is  said  to  be  applied  in 
equity,  unless  relief  is  sought  against  the  instrument  on  the 
ground  of  fraud  or  mistake ;  (y)  but  where  not  expressed  it 
may  be  proved,  (z)  And  where  the  contract  declares  that  it 
was  made  for  valuable  consideration,  this  is  prima  facie  evi- 
dence of  such  consideration.  («) 


SECTION  IL 

KINDS   OF    CONSIDERATIONS. 

The  civil  law  division  of  all  considerations  into  four  spe- 
cies, very  clearly  stated  by  Blackstone,  is  logically  exact  and 
exhaustive  ;  [b)  but  it  has  never  been  so  far  introduced  into 


(.r)  Maigley  v.  Hauer,  7  Johns.  341. 

(y)  Clarkson  v.  Hanway,  2  P.  Wms. 
203 ;  Peacock  v.  Monk,  1  Ves.  Sen. 
127  ;  Pilmer  v.  Gott,  7  Bro.  P.  C.  70.  — 
But  the  more  modern  decisions  allow 
the  maker  of  a  deed  or  contract  in  writ- 
ing to  show  other  and  additional  con- 
siderations to  those  expressed  in  the  in- 
strument. Emmons  v.  Littlefield,  13 
Maine,  233  ;  Tyler  v.  Carlton,  7  Greenl. 
175  ;  Wallis  v.  Wallis,  4  Mass.  135, 
Parsons,  C.  J. ;  Quarles  v.  Quarles,  Id. 
680  ;  Wilkinson  v.  Scott,  17  Mass.  249. 

(z)  Orms  V.  Ashley,  4  Pick.  71  ; 
Tingley  v.  Cutler,  7  Conn.  291. 

(a)  Whitney  v.  Stearns,  16  Maine, 
394.  Sec  Sloan  v.  Gibson,  4  Missouri, 
33. 

(h)  "  These  valuable  considerations 
are  divided  by  the  civilians  into  four 
species.  1.  Do,  nt  des ;  as  when  I  give 
money  or  goods,  on  a  contract,  that  I 
shall  be  repaid  money  or  goods  for  them 
again.  Of  this  kind  are  all  loans  of 
money  upon  bond  or  promise  of  repay- 
ment ;  and  all  sales  of  goods,  in  which 
there  is  cither  an  express  contract  to 
pay  so  much  for  them,  or  else  the  law 
implies  a  contract  to  pay  so  much  as 
they  are  worth.  2.  The  second  species 
\s,facio,  ut  facias;  as  when  I  agree  with 
a  man  to  do  his  Avork  for  him,  if  he  will 
do  mine  for  me ;  or  if  two  persons  agree 
[368] 


to  marry  together,  or  to  do  any  other 
positive  acts  on  both  sides.  Or  it  may 
be  to  forbear  on  one  side  in  considera- 
tion of  something  done  on  the  other,  as. 
that  in  consideration  A.,  the  tenant,  will 
repair  his  house,  B.,  the  landlord,  will 
not  sue  him  for  waste.  Or  it  may  be 
for  mutual  forbearance  on  both  sides  ; 
as,  that  in  consideration  that  A.  will  not 
trade  to  Lisbon,  B.  will  not  trade  to 
Marseilles ;  so  as  to  avoid  interfering 
with  each  other.  3.  The  third  species 
of  consideration  \sfacio,  ut  des  ;  when  a 
man  agrees  to  perform  any  thing  for  a 
price,  either  specifically  mentioned,  or 
left  to  the  determination  of  the  law  to 
set  a  value  to  it.  And  when  a  servant 
hires  himself  to  his  master  for  certain 
wages,  or  an  agreed  sum  of  money,  hero 
the  servant  contracts  to  do  his  master's 
service,  in  order  to  earn  that  specific 
sum.  Otherwise  if  he  be  hired  gene- 
rally ;  for  then  he  is  under  an  implied 
contract  to  perform  this  service  for  what 
it  shall  be  reasonably  worth.  4.  The 
fourth  species  is.  Do,  ut  facias;  which  is 
the  direct  counterpart  of  the  preceding. 
As  when  I  agree  with  a  servant  to  give 
him  such  wages  upon  his  performing 
such  work ;  which  is  nothing  else  but 
the  last  species  inverted  :  for  servus 
J'acit.  ut  herus  (let,  and  lierus  dat,  ut  ser-vus 
faciat."     2  Bl.  Com.  444. 


CH.  I.]  CONSIDERATION.  357 

the  common  law  as  to  be  of  much  practical  utility  in  deter- 
mining questions  of  law. 

The  fundamental  distinction  in  the  common  law  is  be- 
tween those  cases  where  the  consideration  is  a  benefit  to  him 
who  makes  the  promise,  and  those  in  which  it  is  some  injury 
to  him  who  receives  the  promise.  For  it  is  a  perfectly  well- 
settled  rule,  that  if  a  benefit  accrues  to  him  who  makes  the 
promise,  or  if  any  loss  or  disadvantage  accrues  to  him  to 
whom  it  is  made,  although  without  benefit  to  the  promisor, 
in  either  case  the  consideration  is  sufficient  to  sustain  as- 
sumpsit, (c) 

Considerations,  at  common  law,  may  be  good,  or  valuable. 
The  definition  of  Blackstone  is  this  :  —  "A  good  considera- 
tion is  such  as  that  of  blood,  or  of  natural  love  and  afTection, 
when  a  man  grants  an  estate  to  a  near  relation ;  being  founded 
on  motives  of  generosity,  prudence,  and  natural  duty.  A  val- 
uable consideration  is  such  as  money,  marriage,  or  the  like, 
which  the  law  esteems  an  equivalent  given  for  the  gi*ant;  and 
is  therefore  founded  in  motives  of  justice."  [d)  A  valuable 
consideration  is  usually  in  some  way  pecuniary,  or  converti- 
ble into  money;  marriage,  which  it  is  now  settled  is  a  valu- 
able consideration,  (e)  is  the  principal  exception  to  this. 

An  equitable  consideration  is  sufficient  as  between  the 
parties,  although  it  be  not  valuable ;  but  only  a  valuable 
consideration  is  valid  as  against  a  third  party,  as  a  subse- 
quent purchaser,  (/)  whose  debt  existed  when  the  contract 
was  made,  an  attaching  creditor,  or  the  like.     It  is  at  least 


(c)  Com.  Dig.  Action  upon  the  Case  not  only  might  be  a  'valuable^  consi- 
upon  Assumpsit  (B.  1);  Pillans  v.  deration  in  the  absence  of  a  ^  (jootl  ' 
Van  Mierop,  3  Burr.  1673;  Nerot  v.  consideration,  but  the  two  considcra- 
Wallace,  3  T.  R.  24  ;  Biinn  v.  Guy,  4  tions  are  seldom  united.  When  there 
East,  194;  Willatts  t'.  Kennedy,  8  Bing.  is  a  '■good'  consideration  there  is  not 
5  ;  Miller  v.  Drake,  1  Caines,  45  ;  Bow-  generally,  also,  a  '  valuable  '  considera- 
ell  V.  Brown,  3  Johns.  100 ;  Forster  v.  tion,  and  e  converso.  There  may  be  a 
Fuller,  6  Mass.  58;  Townsley  v.  Sum-  ?;a^uaWe  consideration,  which  is  not  ra/iV/ 
rail,  2  Pet.  182.  in  law." 

(d)  2  Bl.  Com.  297.  In  Coyle  v.  (e)  Whelan  v.  Whelan,  3  Cow.  537 ; 
Fowler,  3  J.  J.  Marsh.  473,  it  is  said  :  —  Sterry  v.  Arden,  1  Johns.  Ch.  261 ;  Barr 
'•  A  plea  that  a  note  was  executed  with-  v.  Hill,  Add.  276 ;  ilustin  v.  Cantril,  1 1 
out  any '^oocZ'  consideration  would  not  Leigh,  136;  Magniac  v.  Thompson,  7 
be  a  bar  to  a  suit  on  the  note,  because  it  Pet.  348. 

is  immaterial  whether  there  was  a '_(7oo(Z  '         (/)  Jjord  Tenter  den,   C  f.,  iu  Gully 

consideration  or  not,  provided  there  was  v.  Bishop  of  Exeter,  10  B.  &  C  606; 

a  'valuable'   consideration;    and   there  Chitty  on  Cont.  28. 

[369] 


358 


THE   LAW   OP   CONTRACTS. 


[book  II. 


true  that  an  equitable  consideration  is  sufficient  in  all  con- 
veyances by  deed,  and  in  transfers  not  by  deed,  but  accom- 
panied by  immediate  possession,  (g-)  But  where  there  is  a 
promise,  performable  of  course  in  future,  and  the  considera- 
tion is  only  moral,  there  it  might  have  been  said  formerly 
that  the  law  was  not  positively  settled.  But  the  late  cases  set- 
tle the  question  definitively.  Mr.  Baron  Parke  has  said,  "  a 
mere  moral  consideration  is  nothifig"."  {h)     Neither  the  rule 


(g)  Noble  v.  Smith,  2  Johns.  52  ; 
Grangaic  v.  Arden,  10  Johns.  293  ;  Pitts 
V.  Mangum,  2  Bailey,  588  ;  Pearson  v. 
Pearson,  7  Johns.  26;  Frisbie  v.  Mc- 
Carty,  1  Stew.  &  Port.  56  ;  Fowler  v. 
Stuart,  1  McCord,  504 ;  Ewing  v.  Ew- 
ing,  2  Leigh,  337  ;  Carpenter  v.  Dodge, 
20  Verm.  595.  In  Smith  v.  Smith,  7 
C.  &  P.  401,  it  was  held  that  a  gift  from 
a  father  to  a  son  of  a  watch,  chain,  and 
seals,  was  valid  upon  delivery,  and  the 
father  could  not  afterwards  revoke  the 
gift. 

(h]  Jennings  v.  Brown,  9  M.  &  W. 
501.  This  subject  was  examined  at 
length  in  the  late  case  of  Eastwood  v. 
Kenyon,  11  Ad.  &  Ell.  438,  where  it 
was  held  that  a  pecuniary  benefit,  volun- 
tarily conferred  by  plaintiff  and  accept- 
ed by  defendant,  is  not  such  a  consider- 
ation as  will  support  an  action  of  as- 
sumpsit on  a  subsequent  express  pro- 
mise by  defendant  to  reimburse  plain- 
tiff. Therefore,  where  the  declaration 
in  assumpsit  stated  that  plaintiff  was  ex- 
ecutor of  the  father  of  defendant's  wife, 
who  died  intestate  as  to  his  land,  leav- 
ing defendant's  Avife,  an  infant,  his  only 
child  and  heir ;  that  plaintiff  acted  as 
her  guardian  and  agent  during  infancy, 
and  in  that  capacity  expended  money 
on  her  maintenance  and  education,  in 
the  management  and  improvement  of 
the  land,  and  in  paying  the  interest  of 
a  mortgage  on  it ;  that  the  estate  was 
benefited  thereby  to  the  full  amount  of 
such  expenditure  ;  that  plaintiff,  being 
unable  to  repay  himself  out  of  the  per- 
sonal assets,  borrowed  money  of  A.  B. 
on  his  promissory  note;  that  the  de- 
fendant's wife,  when  of  age  and  before 
marriage,  assented  to  the  loan  and  the 
note,  and  requested  plaintift'  to  give  up 
the  management  of  the  property  to  her, 
and  prom^ed  to  pay  the  note,  and  did 
in  fiict  pay  one  year's  interest  on  it; 
that  plaintiff  thereupon  gave  up  the  ma- 

[370] 


nagement  accordingly ;  that  defendant, 
after  his  marriage,  assented  to  the  plain- 
tiff's accounts,  and  upon  such  account- 
ing a  certain  sum  was  found  due  to 
plaintiff  for  moneys  so  spent  and  bor- 
rowed :  that  the  defendant,  in  right  of 
his  wife,  received  all  the  benefit  of 
plaintiff's  said  services  and  expenditure, 
and  thereupon  in  consideration  of  the 
premises,  promised  plaintiff"  to  pay  and 
discharge  the  note.  Held,  on  motion 
in  arrest  of  judgment,  that  the  declara- 
tion was  bad  as  not  disclosing  a  suffi- 
cient consideration  for  defendant's  pro- 
mise. And  Lord  Denman  said  in  giv- 
ing judgment :  —  "  Most  of  the  older 
cases  on  this  subject  are  collected  in  a 
learned  note  to  the  case  of  Wennall  v. 
Adney,  3  B.&P.  249,  and  the  conclusion 
there  arrived  at  seems  to  be  correct  in  ge- 
neral, '  that  an  express  promise  can  only 
revive  a  precedent  good  considei-ation, 
which  might  have  been  enforced  at  law 
through  the  medium  of  an  implied  pro- 
mise, had  it  not  been  suspended  by 
some  positive  rule  of  law  ;  but  can  give 
no  original  cause  of  action,  if  the  obli- 
gation, on  which  it  is  founded,  never 
could  have  been  enforced  at  law,  though 
not  barred  by  any  legal  maxim  or  sta- 
tute provision.'  Instances  are  given  of 
voidable  contracts,  as  those  of  infants 
ratified  by  an  express  promise  after  age, 
and  distinguished  from  void  contracts, 
as  of  married  women,  not  capable  of 
ratification  by  them  when  widows ;  Loyd 
V.  Lee,  1  Stra.  94 ;  debts  of  bankrupts 
revived  by  subsequent  promise  after  cer- 
tificate ;  and  similar  cases.  Since  that 
time  some  cases  have  occurred  upon 
this  subject  which  require  to  be  more 
particularly  examined.  Barnes  v.  Hed- 
ley,  2  Taunt.  184,  decided  that  a  promise 
to  repay  a  sum  of  money,  with  legal  inte- 
rest, which  sum  had  originally  been  lent 
on  usurious  terms,  but,  in  taking  the  ac- 
count of  which,  all  usurious  items  had 


CH.  I.] 


CONSIDERATION. 


559 


which  so  distinctly  postpones  moral  considerations  to  those 
which  are  pecuniary,  nor  that  which  seems  to  embrace  mar- 


been  by  agreement  struck  out,  was  bind- 
ing. Lee  V.  Muggcridgc,  5  Taunt.  36,  up- 
held an  assumpsit  by  a  widow  that  her 
executors  should  pay  a  bond  given  by 
her  while  a  feme  covert  to  secure  money 
then  advanced  to  a  third  person  at  her  re- 
quest. On  the  latter  occasion  the  lan- 
guage of  Mansfield,  C.  J.,  and  of  the 
whole  Court  of  Common  Pleas,  is  very 
large,  and  hardly  susceptible  of  any 
limitation.  It  is  conformable  to  the 
expressions  used  by  the  judges  of  this 
court  in  Cooper  r.  Martin,  4  East,  76, 
where  a  stepfather  was  permitted  to  re- 
cover from  the  son  of  his  wife,  after  he 
had  attained  his  full  age,  upon  a  declar- 
ation for  necessaries  furnished  to  him 
while  an  infont,  for  which,  after  his  full 
age,  he  promised  to  pay.  It  is  remark- 
able that  in  none  of  these  there  was  any 
allusion  made  to  the  learned  note  above 
referred  to,  which  has  been  very  general- 
ly thought  to  contain  a  correct  statement 
of  the  law.  The  case  of  Barnes  v.  Hed- 
ley,  is  fully  consistent  with  the  doctrine 
in  that  note  laid  down.  Cooper  v.  Mar- 
tin also,  when  fully  examined,  will  be 
found  not  to  be  inconsistent  with  it. 
This  last  case  appears  to  have  occupied 
the  attention  of  the  court  much  more  in 
respect  of  the  supposed  statutable  liabi- 
lity of  a  stepfathei',  which  was  denied  by 
the  court,  and  in  respect  of  what  a  court 
of  equity  would  hold  as  to  a  stepfather's 
liability,  and  rather  to  have  assumed  the 
point  before  us.  It  should,  however,  be 
observed,  that  Lord  Elknboroufjk  in  giv- 
ing his  judgment  says:  —  'The  plain- 
tiff having  done  an  act  beneficial  for  the 
defendant  in  his  infancy,  it  is  a  good 
consideration  for  the  defendant's  pro- 
mise after  he  came  of  age.  In  such  a 
case  the  law  will  imply  a  request,  and 
the  fact  of  the  promise  has  been  found 
by  the  jury  ; '  and  undoubtedly  tlie 
action  would  have  lain  against  the  de- 
fendant whilst  an  infant,  inasmuch  as  it 
was  for  necessaries  furnished  at  his  re- 
quest in  regard  to  which  the  law  raises 
an  implied  promise.  The  case  of  Lee 
V.  Muggeridge  must,  however,  be  allow- 
ed to  be  decidedly  at  variance  with  the 
doctrine  in  the  note  alluded  to,  and  is  a 
decision  of  great  authority.  It  should, 
however,  be  observed,  that  in  that  case 


there  was  an  actual  request  of  the  de- 
fendant during  coverture,  though  not  one 
binding  in  law  ;  but  the  ground  of  deci- 
sion there  taken  was  also  equally  applica- 
ble to  Littlefield  v.  Shee,  2  B.  &  Ad.  811, 
tried  by  Gaselce,  J.,  at  N.  P.,  when  the 
learned  judge  held,  notwithstanding,  that 
'  the  defendant  having  been  a  married  wo- 
man when  the  goods  were  supplied,  her 
husband  was  originally  liable,  and  there 
was  no  consideration  for  the  promises 
declared  upon.'  After  time  taken  for 
deliberation  this  court  refused  even 
a  rule  to  show  cause  why  the  nonsuit 
should  not  be  set  aside.  Lee  v.  Mug- 
geridge was  cited  on  the  motion,  and 
was  sought  to  be  distinguished  by  Lord 
Tenterden,  because  there  the  circum- 
stances raising  the  consideration  were 
set  out  truly  on  the  record,  but  in  Lit- 
tlefield V.  Shee  the  declaration  stated 
the  consideration  to  be  that  the  plain- 
tiff had  supplied  the  defendant  with 
goods  at  her  request,  which  the  plain- 
tiff failed  in  proving,  inasmuch  as  it 
appeared  that  the  goods  were  in  point 
of  law  supplied  to  the  defendant's  hus- 
band, and  not  to  her.  But  Lord  Ten- 
terden added,  that  the  doctrine  that  a 
moral  obligation  is  a  sufficient  consider- 
ation for  a  subsequent  promise  is  one 
which  should  be  received  with  some  limit- 
ation. This  sentence,  in  truth,  amounts 
to  a  dissent  from  the  authority  of  Lee 
V.  Muggeridge,  where  the  doctrine  is 
wholly  unqualified .  The  eminent  coun- 
sel who  argued  for  the  plaintiff  in  Lee 
V.  Muggeridge  spoke  of  Lord  Mansfield 
as  having  considered  the  rule  of  nudum 
pactum  as  too  narrow,  and  maintained 
that  all  promises  deliberately  made 
ought  to  be  held  binding.  I  do  not  find 
this  language  ascribed  to  him  by  any 
reporter,  and  do  not  know  whether  we 
are  to  receive  it  as  a  traditional  report, 
or  as  a  deduction  from  what  he  does 
appear  to  have  laid  down.  If  the  lat- 
ter, the  note  to  Wennall  v.  Adney 
shows  the  deduction  to  be  erroneous. 
If  the  former.  Lord  Tenterden  and  this 
court  declared  that  they  could  not 
adopt  it  in  Littlefield  v.  Shee.  Indeed, 
the  doctrine  would  annihilate  the  neces-  ■ 
sity  for  any  consideration  at  all,  inas- 
much as  the  mere  fact  of  giving  a  pro- 

[371] 


860 


THE  LAW   OF   CONTRACTS. 


BOOK  II. 


riage  within  the  same  category  as  money,  appear  at  first 
sight  very  creditable  to  the  common  law.  There  is,  however, 
one  reason  which  doubtless  had  much  influence  in  establish- 
ing this  rule  ;  and  that  is  the  extreme  difficulty  of  deciding 
between  considerations  bearing  a  moral  aspect,  which  were 
and  which  were  not  sufficient  to  sustain  an  action  at  law. 
And  the  rule  may  now  be  stated  as  follows :  a  moral  obliga- 
tion to  pay  money  or  to  perform  a  duty  is  a  good  consider- 
ation for  a  promise  to  do  so,  where  there  was  originally  an 
obligation  to  pay  the  money  or  to  do  the  duty,  w^hich  was 
enforceable  at  law  but  for  the  interference  of  some  rule  of 
law.  Thus,  a  promise  to  pay  a  debt  contracted  during 
infancy,  or  barred  by  the  statute  of  limitations,  or  bank- 
ruptcy, is  good,  without  other  consideration  than  the  previous 
legal  obligation.  But  the  morality  of  the  promise,  however 
certain,  or  however  urgent  the  duty,  does  not  of  itself  suffice 
for  a  consideration.  In  fact,  the  rule  amounts  at  present  to 
little  more  than  permission  to  a  party  to  waive  certain  posi- 


mise  creates  ji  moral  obligation  to  per- 
form it."  The  same  doctrine  was  sup- 
ported by  the  later  case  of  Kaye  v.  But- 
ton, 7  Mann.  &  Gr.  807.  —  The  case  of 
Lee  V.  Muggeridge  is  clearly  wrong,  and 
inconsistent  with  many  subsequent  cases 
in  England  and  this  country,  where  the 
doctrine  is  now  almost  universally  re- 
cognized, whatever  it  may  have  been  in 
some  earlier  cases,  that  a  mere  moral 
obligation  is  not  sufficient  to  support 
an  express  promise.  Thus,  where  a 
son,  who  was  of  full  age,  and  had 
ceased  to  be  a  member  of  his  father's 
family,  was  suddenly  taken  sick  among 
strangers,  and,  being  poor  and  in  dis- 
tress, was  relieved  by  the  plaintiff;  and 
afterwards  the  father  wrote  to  the  plain- 
tiff, promising  to  paj'  tlie  expenses  in- 
curred, it  was  held  that  such  a  promise 
would  not  sustain  an  action.  JMills  v. 
Wyman,  3  Pick.  207.  So,  where  the 
plaintiff  had  furnished  necessaries  to  a 
person,  indigent  and  in  need  of  relief, 
and  his  son,  who  was  of  sufficient  abi- 
lity, signed  and  delivered  this  writing 
to  the  plaintiff,  viz :  —  •'  This  may  cer- 
tify that  the  debt  now  due  from  my  fa- 
ther to  A.  [the  plaintiff,]  I  acknowledge 

[372] 


to  be  for  necessaries  of  life,  and  of  such 
a  nature  that  I  consider  myself  hereby 
obligated  to  pay  A.  $60  towards  said 
debt,  now  due,  provided  my  father  does 
not  settle  with  A.  in  his  lifetime ; "  it 
was  held  that  this  contract  was  void,  for 
want  of  consideration.  Cook  v.  Brad- 
ley, 7  Conn.  57.  See  also  Loomis  r. 
Newhall,  15  Tick,  159,  similar  to  Mills 
V.  "Wyman  ;  Hawley  v.  Farrar,  1  Verm. 
420  ;  Parker  v.  Carter,  4  Munf.  273, 
where  a  promise  by  a  son  to  pay  a  debt 
for  his  father  was  lield  void  for  v.ant  of 
consideration ;  McPherson  v.  Rces,  2 
Penn.  521  ;  Smith  r.  Ware,  13  Johns. 
257,  where  a  lot  of  land  was  sold,  de- 
scribed in  the  deed  as  supposed  to  contain 
ninety-three  acres,  but  was  found  to  be 
five  or  six  acres  short,  the  promise  of 
the  seller  to  pay  for  the  deficiency  was 
held  to  be  without  consideration.  Frear 
V.  Hardcnbcrgh,  5  Johns.  272,  where  a 
promise  to  pay  for  labor  of  plaintiff  on 
land  recovered  from  him  by  defendant 
in  a  suit  at  law,  was  held  void  for  want 
of  consideration.  This  case  was  cited 
with  approbation  in  Society,  &.c.  r. 
Wheeler,  2  Gallison,  143. 


CH.    I.] 


CONSIDERATION. 


*361 


tive  rules  of  law  which  would  protect  him   from   a  plaintiff 
claiming  a  just  debt,  (i) 

*  Perhaps  an  illustration  of  the  rule,  that  a  moral  obligation 
does  not  form  a  valid  consideration  for  a  promise,  unless  the 
moral  duty  were  once  a  legal  one,  may  be  found  in  the  case 
of  a  widow,  who  promises  to  pay  for  money  expended  at  her 
request  or  lent  to  her  during  her  marriage.  It  has  been  held 
in  England,  in  a  case  examined  in  a  former  note,  [j)  that 
this  promise  was  binding,  and  there  are  many  dicta  to  that 
effect  in  this  country;  {k)  but  the  current  of  recent  decision 
in  England  is  rather  in  favor  of  the  view  that  the  promise  of 
a  married  woman  has  not,  when  given,  any  legal  force,  and 
therefore  is  not  voidable,  but  void  ;  and  cannot  be  ratified  by 
a  subsequent  promise  after  the  coverture  has  ceased,  nor  be 
regarded  as  a  sufficient  consideration  for  a  new  promise.  (/) 
And  a  late  case  in  New  York  takes  the  same  ground  very 
decidedly,  {m)  It  has,  however,  been  held  that  the  promise 
of  a  widow  to  pay  for  goods  furnished  during  her  coverture, 
on  the  faith  of  her  separate  estate,  was  binding.  (/?) 


(f)  Wa}^  V.  Sperry,  6  Cusli.  238; 
Turner  v.  Chrisman,  20  Ohio,  332  ; 
Dod.i^e  ?>.  Adams,  19  Pick.  429;  Ehle 
V.  judson,  24  Wend.  97  ;  Warren 
/•.  Whitney,  24  Maine,  561  ;  Geer  v. 
Archer,  2  i3arb.  420.  In  this  last  ease 
it  was  held  that  an  express  promise  can 
only  revive  a  precedent  good  consider- 
ation, which  miglit  have  been  enforced 
throujjh  the  medium  of  an  implied  pro- 
mise, !iad  it  not  been  suspended  by  some 
positive  rule  of  law,  but  can  give  no 
original  right  of  action,  if  the  obligation 
on  which  it  is  founded  never  could  have 
Iieen  enforced  at  law,  though  not  barred 
by  any  legal  maxim  or  statute  provi- 
sion. But  it  is  not  necessary  that  the 
moral  obligation  in  order  to  be  a  good 
foundation  for  an  express  promise, 
should  be  such  that,  without  the  express 
promise,  an  action  could  once  have  been 

VOL.   I.  32 


sustaijied  upon  it.  But.  if  it  could  have 
been  made  available  in  a  defence,  it  is 
equally  within  the  rule.  See  also  Nash 
V.  Russell.  5  Barb.  556  ;  Mardis  v.  Ty- 
ler, 10  B.  Mon.  382  ;  Watkins  v.  Ilal- 
stead,  2  Sandf.  311,  and  page  308, 
ante. 

{ j)  Lee  V.  Muggerldge,  5  Taunt.  47  : 
see  note  (A)  ante. 

(k)  Cook  V.  Bradley,  7  Conn.  57 ; 
Hatchell  v.  Odom,  2  l)ev.  &  Bat.  302 ; 
Ehle  v.  Judson,  24  Wend.  97  ;  Geer  v. 
Archer,  2  Barb.  420. 

(I)  Littleficld  V.  Shec,  2  B.  &  Ad. 
811  ;  Meyer  v.  Hawortb,  8  Ad.  &  El. 
467;  Eastwood  v.  Ken  von,  11  Ad.  & 
El.  438.  See  also  Loyd  t-.'  Lee,  1  Str. 
94,  and  note  (/;)  ante. 

(m)  Watkins  v.  Halstead,  2  Sandf. 
311. 

{n)  Vance  v.  Wells,  8  Ala.  399. 

[373] 


362* 


THE   LAW   OF  CONTRACTS. 


BOOK  II. 


SECTION  III. 


ADEQUACY    OF   CONSIDERATION. 


If  the  consideration  be  valuable  it  need  not  be  adequate  ; 
that  is,  the  court  will  not  inquire  into  the  exact  proportion 
between  the  value  of  the  consideration  and  that  of  the  thing 
to  be  done  for  it.  (o)  But  it  must  have  some  real  value  ;  and 
*  if  this  be  very  small,  this  circumstance  may,  even  by  itself 
and  still  more  when  connected  with  other  indications,  imply 
or  sustain  a  charge  of  fraud,  [p)  The  courts,  both  in  law 
and  in  equity,  refuse  to  disturb  contracts  on  questions  of  mere 
adequacy,  whether  the  consideration  be  of  benefit  to  the  pro- 
misor, or  of  injury  to  the  promisee.  Nevertheless,  if  an  agree- 
ment be  unreasonable  or  unconscionable,  but  not  in  such  a 
way  or  to  such  a  degree  as  to  imply  fraud,  courts  of  equity 
will  not  decree  a  specific  performance,  [pp)  and  though  courts 


(o)  Skeate  v.  Bcale,  11  Ad.  &  El. 
983 ;  Hitchcock  v.  Coker,  6  Ad.  &  El. 
438,  456  ;  Hubbard  v.  Coolidge,  1  Met. 
84  ;  Whittle  v.  Skinner,  23  Verm.  532 ; 
Sanborn  v.  French,  2  Fost.  246 ;  Phil- 
lipps  V.  Bateman,  16  East,  372;  Kirwan 
V.  Kirwan,  2  C.  &  M.  623;  Cole  v. 
Trecothick,  9  Ves.  246  ;  Flo^ycr  v.  She- 
rard,  Amb.  18  ;  MacGhee  i'.  Morgan,  2 
Sch.  &  Lcf.  395,  n.  a  ;  Low  v.  Barchard, 
8  Ves.  133  ;  Speed  v.  Phillips,  3  Anst. 
732. 

(p)  Cockell  V.  Taylor,  15  E.  L.  &  E. 
101  ;  Edwards  r.  Burt,  15  E.  L.&E.435; 
Johnson  v.  Dorsey,  7  Gill,  269 ;  "Wor- 
mack  V.  Rogers,  9  Georg.  60;  Judge  v. 
Wilkins,  19  Ala.  765;  Milnes  v.  Cow- 
ley, 8  Price,  620 ;  Prcbble  v.  Boghurt, 
1  Swanst.  329.  Mere  folly  or  weak- 
ness or  want  of  judgment,  will  not  de- 
feat a  contract.  This  is  well  illustrated 
by  the  case  of  James  r.  ]\Iorgan,  1  Lev. 
Ill,  1  Keb.569.  An  action  wasi)rought 
in  special  assumpsit,  on  an  agreement 
to  pay  for  a  horse  a  barley  corn  a  nail, 
for  every  nail  in  the  horse's  shoes,  and 
double  every  nail,  whicli  came,  there  be- 
ing thirty-two  nails,  to  five  hundred  quar- 
ters of  barley ;  and  on  a  trial  before 
Hyde,  J.,  the  jury  under  his  direction 
gave  the  full  value  of  the  horse,  £8,  as 

[374] 


damages ;  and  it  is  to  be  collected  that 
the  contract  was  considered  valid  ;  for 
the  report  states  that  there  was  after- 
Avards  a  motion  to  the  court  in  arrest  of 
judgment,  for  a  small  fault  in  the  decla- 
ration, which  was  overruled,  and  the 
plaintiff  had  judgment.  See  Chitty  on 
Cont.  32.  And  where  in  an  action  of 
assumpsit  it  was  alleged  that  in  con- 
sideration of  2s.  6c?.  paid,  and  4/.  17s.  6f/. 
to  be  paid,  the  defendant  promised  to 
deliver  two  rye  corns  on  the  then  next 
Monday,  and  double  in  geometrical 
progression  every  succeeding  Monday, 
(or  every  other  Monday,)  for  a  year, 
which  would  have  required  the  delivery 
of  more  rye  than  was  grown  in  the 
whole  year,  the  court  on  demurrer 
seemed  to  consider  the  contract  good  ; 
and  Powell,  J.,  said,  that  although  the 
contract  was  a  foolish  one,  yet  it  would 
hold  good  in  law,  and  that  the  defend- 
ant ought  to  pay  something  for  his 
folly;  but  no  judgment  was  given,  the 
case  being  compromised.  Thornborow 
V.  Whiteacre,  2  Ld.  Kavm.  1164.  See 
Chitty  on  Cont.  32. 

(pp)  Osirood  V.  Franklin,  2  Johns. 
Ch.  R.  23  ;'']Mortlock  r.  Buller,  10  Ves. 
292  ;  Gasque  v.  Small,  2  Strob.  Eq.  72. 


CH.   I.] 


CONSIDERATION. 


*33.3 


of  law  will  not  declare  the  contract  void,  they  will  give  only 
reasonable  damages  to  the  plaintiff  who  seeks  compensation 
for  a  breach  of  it.  (q)  When  adequacy  of  consideration  be- 
comes material,  it  is  a  question  for  the  court,  (r) 

As  the  consideration  must  have  some  value  and  reality, 
*  the  assumption  of  a  supposed  danger  or  liability,  which  has 
no  foundation  in  law  or  in  fact,  is  not  a  valuable  or  sufficient 
consideration,  (s)  nor  is  the  performance  of  that  which  the 
party  was  under  a  previous  valid  legal  obligation  to  do;  (ss) 
and  where  one  through  mistake  of  the  law  acknowledges 
himself  under  an  obligation  which  the  law  does  not  impose, 
he  is  not  bound  by  such  promise;  (t)  although,  in  general, 
ignorance  of  the  law  is  no  excuse  or  defence,  for  if  it  were, 
"  a  premium  would  be  held  out  to  ignorance."  (tt) 


SECTION  IV. 
PREVENTION   OF   LITIGATION. 

The  prevention  of  litigation  is  a  valid  and  sufficient  con- 
sideration ;  for  the  law  favors  the  settlement  of  disputes.  («) 


(q)  Thus,  where  an  execution  creditor 
proposed  to  discharge  the  execution, 
witliout  putting  it  into  an  officer's  hands, 
if  the  debtor  would  give  his  note  for  the 
debt  and  costs,  and  also  the  sum  wiiich 
an  ofliccr  might  charge  for  collecting 
the  execution,  and  such  note  was  given, 
payable  in  oats,  at  a  very  low  price  per 
bushel ;  the  court  held  that  though  the 
note  was  not  usurious,  yet  it  was  un- 
cons(?ional)le,  and  they  deducted  the 
sum  included  in  the  note  as  officer's 
fees  from  the  amount  of  the  verdict  on 
the  note.  Cutler  v.  How,  8  Mass.  257. 
See  Cutler  r.  Johnson,  8  Mass.  266. — 
So,  where  tlic  defendant  hired  a  cow 
and  calf  of  the  plaintiff,  and  agreed  to 
return  them  in  one  year,  with  six  dol- 
lars for  the  use  of  them,  and,  if  not  then 
delivered,  six  dollars  annually  until  de- 
livered, it  was  held  that  the  plaintiff  was 
entitled  to  recover  the  value  of  the  cat- 
tle, with  six  dollars  for  the  use  of  them 
for  one  year  only,  and  interest  on  those 
sums  from  the  expiration  of  the  year 


until  the  cattle  were  delivered.  Baxter 
V.  Wales,  12  Mass.  365. 

(r)  Best,  C.  J.,  in  Homer  v.  Ashford, 
3  Bing.  327. 

(s)  Cabot  V.  Haskins,  3  Pick.  83. 

{ss)  Harris  v.  Watson,  Peakc,  N.  P.  C. 
72  :  Stilk  v.  Myrick,  2  Camp.  317  ;  Cal- 
lag'an  1-.  Hallett,  1  Caines,  104;  Willis 
17.  Peckham,  1  Bro.  &  B.  515;  Collins 
V.  Godefroy,  1  B.  &  Ad.  950 ;  Sweany 
V.  Hunter,  1  Murphy,  181;  Smith  v. 
Bartholemew,  1  Met.  276 ;  Crowhurst 
V.  Lavcrack,  16  E.  L.  &  E.  498; 
L'Amoreux   v.    Gould,  3  Seldcn,   349. 

{t)  Warder  v.  Tucker,  7  Mass.  449  ; 
Freeman  v.  Boynton,  7  Mass.  483  ;  May 
V.  Coffin,  4  Mass.  347 ;  Silvernail  v. 
Cole,  12  Barb.  685  ;  Pvoss's  Exr.  v. 
M'Lauchlan's  Admr.  7  Grattan,  86. 

{ft)  Bilbie  v.  Lumley,  2  East,  469. 

(«)  Penn  v.  Lord  IBaltimorc,  1  Ves. 
Sen.  444.  In  this  case  a  liill  was  filed 
in  chancery  to  enforce  specific  perform- 
ance of  articles  of  agreement  under  seal, 
entered  into  for  the  purpose  of  ascer- 

[375] 


364* 


THE   LAW   OF   CONTRACTS. 


[book  II. 


Thus,  a  mutual  submission  of  demandt?  and  claims  to  arbi- 
tration is  binding  so  far  as  this,  that  the  mutual  promises  are 
a  consideration  each  for  the  other,  (v)  But  tlie  submission 
must  be  mutually  binding;  that  is,  equally  obligatory  on 
both  parties,  or  the  consideration  fails.  On  the  same  ground 
a  mutual  compromise  is  sustained,  (w)  With  the  courts  of 
this  country  the  prevention  of  litigation  is  not  only  a  suffi- 
*cient,  but  a  highly  favored  consideration;  (x)  and  no  inves- 
tigation into  the  character  or  value  of  the  different  claims 
submitted  will  be  entered  into  for  the  purpose  of  setting  aside 
a  compromise,  it  being  sufHcient  if  the  parties  entering  into 
the  compromise  thought  at  the  time  that  there  was  a  ques- 
tion between  them.  (//) 

So  giving  up  a  suit,  or  any  equivalent  proceedings  insti- 
tuted to  try  a  question  of  which  the  legal  result  is  doubtful, 
is  a  good  consideration  for  a  promise  to  pay  a  sum  of  money 
for  an  abandonment   thereof,  (z)      And   in  these  cases  ine- 


taining  and  settling  the  boundaries  of 
two  provinces  of  America,  and  pro- 
viding for  mutual  conveyances,  &c.  It 
was  objected  amongst  other  things, 
that  the  agreement  was  merely  volun- 
tary, and  that  equity  never  decrees  spe- 
cifically without  a  consideration.  Upon 
which  the  Chancellor  (Lord  Hardwicke) 
observed,  that  it  was  true  that  the  court 
never  decrees  specitically  without  a  con- 
sideration ;  but  that  the  agreement  in 
question  was  not  without  consideration  ; 
for  though  nothing  valuable  was  given 
on  the  face  of  the  articles  as  a  con- 
sideration, the  settling  boundaries,  and 
peace  and  quiet,  formed  a  mutual  con- 
sideration on  each  side;  and  in  all  cases 
make  a  consideration  to  support  a  suit 
in  chancery,  for  performance  of  the 
agreement  for  settling  the  boundaries." 
See  also  Wiseman  v.  Eoper,  1  Chan. 
Rep.  1.58;  Stapilton  v.  Stapilton,  1 
Atk.  3. 

(v)  Hodges  V.  Saunders,  17  Pick.  470; 
Jones  V.  Boston  Mill  Corp.  4  Pick.  507  ; 
Com.  Dig.  Action  upon  the  Case  on 
Assumpsit,  (A.  1,)  (B.  2) 

(w)  Durham  ;•.  Wadlington,  2  Strob. 
Eq.  238  ;  Van  Dyke  v.  Davis,  2  Mich. 
145  ;  Hoge  r.  Hoge,  1  Watts,  216.  In 
this  case,  Gibson,  C.  J.,  held  that  a  com- 
promise of  a  doubtful  title  was  binding 
upon  the  parties,  although  ignorant  of 

[37G] 


their  rights,  unless  vitiated  by  fraud 
sufficient  to  avoid  any  other  contract. 
In  Cavode  i\  McKclvey,  Addison,  56, 
where  conflicting  titles  to  land  were 
settled  by  one  claimant  purchasing  the 
title  of  the  other,  it  was  held  that  the 
settlement  was  a  good  consideration 
to  support  such  purchase,  although  the 
title  was  bad.  In  O'Keson  v.  Barclay, 
2  Penn.  531.  an  action  for  slander  was 
compromised  by  the  defendant  agree- 
ing to  give  the  plaintiff  a  certain  sum. 
Held,  by  the  Supreme  Court,  reversing 
the  judgment  of  the  court  below,  that 
there  was  a  sufficient  consideration  for 
the  promise,  although  the  words  laid  in 
the  declaration  were  not  actionable. 

(.r)  See  in  addition  to  cases  in  last 
note,  Zane  v.  Zane,  6  Munf.  406 ;  Tay- 
lor V.  Patrick,  1  Bibb,  168;  Fisher  v. 
jNIay,  2  Bibb,  448 ;  Truett  v.  Chaplin,  4 
Hawks,  178  ;  Brown  v.  Sloan,  6  Watts, 
421;  Stoddard  r.  ^Mix,  14  Conn.  12; 
llice  V.  Bixler,  1  Watts  &  Serg.  456; 
Barlow  v.  Ocean  Ins.  Co.  4  Met.  270. 

{>/)  Ex  parte  Lucy.  21  E.  L.  &  E. 
199;  Mills  v.  Lee,  6  Monr.  91  ;  Moore 
V.  Fitzwatcr,  2  Rand.  442 ;  Bennet  v. 
Paine,  5  Watts,  259. 

{z)  In  Longridge  r.  Dorville,  5  B.  & 
Aid.  117,  it  was  held  that  the  giving  up 
a  suit,  instituted  to  try  a  question  re- 
specting which  the  law  is  doubtful,  is  a 


CH.  I.]  CONSIDERATION.  *365 

quality  of  consideration  does  not  constitute  a  valid  objection  ; 
it  is  enough  if  there  be  an  actual  controversy,  of  which  the 
issue  may  fairly  be  considered  by  both  parties  as  doubtful. 
*  But  a  promise  to  pay  money,  in  consideration  that  the  pro- 
misee would  abandon  proceedings  in  which  the  public  are 
interested,  is  not  sustainable,  because  such  consideration  is 
void  on  grounds  of  public  policy,  (a) 


good  consideration  for  a  promise  to  pay 
a  stipulated  sum  ;  and  therefore  wlierc 
a  ship,  having:  on  board  a  pilot  required 
by  law,  ran  foul  of  another  vessel,  and 
proceedings  were  instituted  by  the  own- 
ers of  the  latter  to  compel  the  owners 
of  the  former  to  make  good  the  damage, 
and  the  former  vessel  was  detained  un- 
til bail  was   given,  and  pending  such 
proceedings  the  agent  of  the  owners  of 
the  vessel  detained  agreed,  on  the  own- 
ers of  the  damaged  vessel  renouncing 
all  claims  on   the  other  vessel,  and  on 
their  proving  the  amount  of  the  damage 
done,  to  indemnify  them,  and  to  pa\'  a 
stipulated  sura  by  way  of  damages  :  it 
was  held  that  there  being  contradictory 
decisions  as  to  the  point  whether  ship- 
owners were  liable  for  an  injury  done, 
v."hile  their  ship  M'as  under  the  control 
of  the  pilot  required  by  law,  there  was 
a  sufficient  consideration  to  sustain  the 
promise  made  by  the  agents  of  the  own- 
ers of  the  detained  vessel  to  pay  the  sti- 
pulated damages.  —  But  in  Walters  i\ 
Smith,  2  B.  &  Ad.  8S9,  where  this  case 
was  relied  upon,  the  case  was  that  B.  & 
C.  being  jointly  indebted  to  A.,  the  lat- 
ter sued  B.    alone.     He  remonstrated 
upon  the  hardship  of  the  case,  alluded 
to    circumstances    which  would   proba- 
bly reduce  the  jdaintiff's  demand  if  he 
gained  a  verdict,  and  proposed  to  put 
an  end  to  the  action  by  paying  part  of 
the  debt,  and  the  costs  of  the  suit.     This 
was  agreed  to,  and  a  receipt  given  for 
the  sum  paid,  which  was  stated  to  be 
for  debt  and  costs  in   that  action.    A. 
having  afterwards  sued  C,  it  was  held 
that  the  composition  above  mentioned 
did  not  operate  as  a  discharge  of  the 
whole  debt,  but  only  to  relieve  B.,  and 
therefore  it  was  no  defence  for  C.  —  In 
Wilkinson  v.   Byers,   1  Ad.  &  El.'  106, 
the   Court  of  King's  Bench   held  that 
where  an  action  has  been  commenced 
for  an  unliquidated  demand,  payment 
by  the  defendant  of  an  agreed  sum  in 
discharge   of  such  demand  is  a   good 

32* 


consideration  for  a  promise  by  the  plain- 
tiff to  stay  proceedings  and  pay  his 
own  costs.  And,  per  Lillledale,  J.,  even 
in  the  case  of  a  liquidated  demand, 
the  same  promise  made  in  considera- 
tion of  the  payment  of  such  demand, 
may  be  enforced  in  an  action  of  assump- 
sit, when  the  agreement  has  been  such 
that  the  court  would  stay  proceedings  if 
the  plaintiff  attempted  to  i;o  on.  See 
Wilbur  V.  Crane,  13  Pick."  284:  Mills 
V.  Leo,  6  Monr.  97  :  Union  Bank  v.  Gea- 
rv,  5  Pet.  114;  Bennet  v.  Paine,  5 
Watts,  259  ;  Hey  v.  Moorhousc,  6  Bing. 
N.  C.  52;  Stracy  v.  Bank  of  England, 
6  Bing.  754  :  Atlee  v.  BackhouseTs  M. 
&  W.  648;' Richardson  r.  Mellish,  2 
Binsr.  229  ;  Thornton  r.  Eairlie,  2 
Moore,  397,  408,  409. 

(a)  in  Coppock  r.  Bower,  4  M.  &  W. 
361,  a  petition  having  been  presented  to 
the  House  of  Commons  against  the  re- 
turn of  a  member,  on  the  ground  of 
bribery;  the  petitioner  entered  into  an 
agreement,  in  consideration  of  a  sura  of 
money,  and  upon  other  terms,  to  pro- 
ceed no  further  with  the  petition.  Lord 
Ahinger  said:  —  "  Then  the  next  ques- 
tion is  whether  this  is  an  unlawful 
agreement;  and  I  think  that  though  it 
may  not  be  so  by  any  statute,  yut  it  is 
unlawful  by  the  common  law.  Here 
was  a  petition  presented  on  a  charge  of 
bribery.  Now  this  is  a  proceeding  in- 
stituted not  for  the  benefit  of  the  indi- 
viduals, but  of  the  public  ;  and  the  only 
interest  in  it  which  the  law  recognizes 
is  that  of  the  public.  I  agree  that  if  the 
person  who  prefers  that  petition  finds, 
in  the  progress  of  the  inquiry,  that  he 
has  no  chance  of  success,  he  is  at  liberty 
to  abandon  it  at  any  time.  But  I  do  not 
agree  that  he  may  take  money  for  so 
doing,  as  a  means  and  with  the  effect  of 
depriving  tlie  public  of  the  benefit  wliich 
would  result  from  the  investigation.  It 
seems  to  me  as  unlawful  to  do  so,  as  it 
would  be  to  take  money  to  stop  a  pro- 
secution for  a  crime.  In  either  case  the 
[37  7] 


366* 


THE   LAW   OF   CONTRACTS. 


[book  II. 


SECTION  V. 


FORBEARANCE. 


An  agreement  to  forbear  for  a  time,  proceedings  at  law  or 
in  equity,  to  enforce  a  well  founded  claim,  is  a  valid  con- 
sideration for  a  promise,  (b)  But  this  consideration  fails  if 
*it  be  shown  that  the  claim  is  wholly  and  certainly  unsus- 
tainable at  law  or  in  equity ;  (c)  but  mere  proof  that  it  is 


prosecutor  might  say  that  he  is  not 
bound,  at  his  own  expense,  to  continue 
an  inquiry  in  which  the  public  alone  are 
interested  ;  but  such  a  reason  does  not 
unnount  to  an  excuse,  where  he  receives 
money  for  discontinuing  the  pi-oceed- 
ings." 

(6)  See  1  Kol.  Abr.  24,  pi.  33  ;  Com. 
Dig.  Action  upon  the  Case  upon  As- 
sumpsit, (B.  1);  3  Chitty,  Com.  L.  66, 
67. — In  Atkinson  v.  Bayntun,  1  Bing. 
N.  C.  44-i,  one  M.  being  in  custody  pur- 
suant to  a  warrant  of  attorney,  by 
■which  he  had  agreed  tJiat  execution 
should  issue  from  time  to  time  for  cer- 
tain instalments  of  a  mortgage  debt,  the 
defendant,  in  consideration  that  the 
plaintiff  would  discharge  I\I.  out  of  cus- 
tody, undertook  that  he  should,  if  neces- 
sary, be  forthcoming  for  a  second  exe- 
cution ;  it  was  held  that  the  defendant's 
contract  was  valid.  —  As  to  the  mode 
of  declaring  in  such  case,  see  Willatts  r. 
Kennedy,  8  Bing.  5;  Moston  r.  Burn, 
7  Ad.  &  El.  19.  In  this  country  the 
same  general  principles  are  recognized. 
Thus,  if  one  promise  to  pay  the  debt  of 
another,  in  consideration  that  the  cre- 
ditor will  "  forbear  and  give  further  time 
for  the  payment"  of  the  debt;  this  is  a 
sufficient  consideration,  though  no  par- 
ticular time  of  forbearance  be  stipu- 
lated ;  tlie  creditor  averring  that  he  did 
thereupon  forbear,  from  such  a  day  till 
such  a  day.  King  v.  Upton,  4  Greenl. 
387.  See  also  Elting  v.  Vanderlyn,  4 
Johns.  237.  —  So  an  agreement  by  a 
surety  to  forbear  a  suit  against  his  prin- 
cipal, after  he  shall  have  paid  the  debt  of 
the  principal,  is  a  good  consideration  to 
support  a  promise,  although  at  the  time 
of  the  agreement  the  surety  had  no  cause 
of  action  against  the  principal.  Hama- 
ker  V.  Eberley,  2  Binn.  506.  —  So  a  pro- 
mise to  forbear,  for  six  months,  to  sue 
[378] 


a  third  person,  on  a  just  cause  of  action, 
is  a  valid  and  sufficient  consideration 
for  a  promissory  note.  And  in  a  suit 
on  such  note  by  the  payee  against  the 
maker,  the  burden  of  proof  is  not  on  the 
payee,  to  show  that  he  has  forborne  ac- 
cording to  his  promise,  but  on  the 
maker,  to  show  that  he  has  not.  Jen- 
nison  v.  Stafford,  1  Cush.  168.  See 
also  Giles  r.  Ackles,  9  Barr,  147  ;  Silvis 
V.  Ely,  3  W.  &  S.  420 ;  Watson  v.  Ean- 
dall,  20  Wend.  201 ;  Ford  v.  Rehnian, 
Wright,  434  ;  Oilman  v.  Kibler,  5 
Humph.  19  ;  Colgin  v.  Henley,  6 
Leigh,  85  ;  Rood  v.  Jones,  1  Doug. 
(Mich.)  188;  Martin  v.  Black's  Exrs. 
20  Ala.  309;  McKinley  v.  Watkins,  13 
III.  140. 

(c)  Gould  V.  Armstrong,  2  Hall,  266  ; 
Lowe  V.  Weatherley,  4  Dev.  &  Bat. 
212  ;  Jones  v.  Ashburnham,  4  East, 
455 ;  Smith  v.  Algar,  1  B.  &  Ad.  604  ; 
Martin  v.  Black's  Exrs.  20  Ala.  309; 
New  Hampshire  Savings  Bank  v.  Col- 
cord,  15  N.  H.  119.  The  case  of  Wade 
V.  Simeon,  2  C.  B.  548,  well  illustrates 
this  principle.  In  that  case  the  decla- 
ration stated  that  the  plaintiff'  had 
brought  an  action  against  the  defend- 
ant in  the  Exchequer  to  recover  certain 
moneys  ;  that  the  defendant  pleaded 
various  pleas,  on  which  issues  in  fact 
had  been  joined,  which  were  about  to 
be  tried  ;  and  that,  in  consideration  that 
the  plaintiff  would  forbear  proceeding 
in  that  action  until  a  certain  day,  the 
plaintiff  promised  on  that  day  to  pay 
the  amount,  but  that  he  made  default, 
&c.  riea,  that  the  plaintiff'  never  had 
any  cause  of  action  against  the  defend- 
ant in  respect  of  the  subject-matter  of 
the  action  in  the  Exchequer,  which  he, 
the  plaintiff,  at  the  time  of  the  com- 
mencement of  the  said  action,  and 
thence  until   and   at   the  time   of  the 


en.  I.] 


CONSIDERATION. 


36T 


doubtful  will  not  invalidate  the  consideration,  (d)  Nor  is  it 
necessary  that  the  forbearance  should  extend  to  an  entire 
discharge  ;  any  delay,  which  is  real  and  not  merely  colora- 
ble, is  enough,  (e)  Nor  is  it  material  whether  the  proceed- 
ings to  be  forborne  have  been  commenced  or  not.  (/)  Nor 
need  the  agreement  to  a  delay  be  for  a  time  certain  ;  for  it 
may  be  for  a  reasonable  time,  and  yet  be  sufficient  consider- 
ation for  a  promise,  (g-)  But  in  declaring  on  a  promise 
made  on  such  a  consideration,  the  plaintiff  must  allege  and 


making  of  the  promise  well  knew.  To 
this  plea  there  was  a  general  demurrer. 
Tindal,  C.  J.,  said  :  —  "By  demurring 
to  the  plea,  the  plaintiff  admits  that  he 
had  no  cause  of  action  against  the  de- 
fendant in  the  action  therein  mentioned, 
and  that  he  knew  it.  It  appears  to  me. 
therefore,  that  he  is  estopped  from  say- 
ing that  there  was  any  valid  considera- 
tion for  the  defendant's  promise.  It  is 
almost  contra  Umos  mores,  and  certainly 
contrary  to  all  the  principles  of  natural 
justice,  that  a  man  should  institute  pro- 
ceedings against  another,  when  he  is 
conscious  that  he  has  no  good  cause  of 
action.  In  order  to  constitute  a  bind- 
ing promise,  the  plaintiff  must  show  a 
good  consideration,  something  beneficial 
to  the  defendant,  or  detrimental  to  the 
plaintiff.  Detrimental  to  the  plaintiff 
it  cannot  be  if  he  has  no  cause  of  action ; 
and  beneficial  to  the  defendant  it  can- 
not be :  for  in  contemplation  of  law, 
the  defence  upon  such  an  admitted  state 
of  facts  imist  be  successful,  and  the  de- 
fendant will  recover  costs,  which  must 
be  assumed  to  be  a  full  compensation 
for  all  the  legal  damage  he  may  sustain. 
The  consideration,  therefore,  altogether 
fails.  On  the  part  of  the  plaintiff  it  has 
been  urged  that  the  cases  cited  for  the 
defendant  were  not  cases  where  actions 
had  already  been  brought,  but  only 
cases  of  promises  to  forbear  commencing 
proceedings.  I  must,  however,  confess 
that,  if  that  were  so,  I  do  not  see  that  it 
would  make  any  substantial  difference. 
The  older  cases,  and  some  of  the  mo- 
dern ones  too,  do  not  afford  any  coun- 
tenance to  that  distinction.  In  Toolcy 
r.  Windham,  Cro.  Eliz.  206,  (more 
fully  reported  2  Leonard,  105.)  it  is 
stated  that  the  plaintiff  had  purchased 
a  writ  out  of  Chancery  against  the  de- 
fendant, to  the  intent"  to  exhibit  a  bill 
against  him  ;    upon   the  return  of  the 


writ,  which  was  for  the  profits  of  certain 
lands,  which  the  father  of  the  defendant 
had  taken  in  his  lifetime,  the  defendant, 
in  consideration  he  would  surcease  his 
suit,  promised  to  him  that  if  he  could 
prove  that  his  father  had  taken  the  pro- 
fits, or  had  possession  of  the  land  under 
the  title  of  the  father  of  the  plaintiff',  he 
would  pay  him  for  the  profits  of  the 
land  ;  and  the  court  held  that  the  pro- 
mise was  without  consideration  and 
void.  There  the  suit  was  in  existence 
at  the  time  of  the  making  of  the  pro- 
mise. So,  in  Atkinson  v.  Settree, 
Willes,  482,  an  action  had  been  com- 
menced at  the  time  the  promise  was 
made.  These  cases  seem  to  me  to  es- 
tablish the  principle  upon  which  our 
present  judgment  rests,  and  I  am  not 
aware  that  it  is  at  all  opposed  by  Long- 
ridge  V.  Dorville."  See  also  Barber  v. 
Fox,  1  Vent.  159,  2  Wms.  Saund.  134  ; 
Eandall  v.  Harvey,  Palm.  394  ;  Atkin- 
son V.  Settree,  Willes,  482  ;  King  v. 
Hobbs,  Yelv.  26 ;  Hammond  r.  Koll, 
March,  202  ;  Loyd  v.  Lee,  1  Stra.  94  ; 
Goodwin  V.  Willoughby,  Latch,  141, 
Toph.  177  ;  Silvernail  v.  Cole,  12  Barb. 
685. 

{d)  Longridge  v.  Dorville,  5  B.  & 
Aid.  117;  Zane  v.  Zane,  6  Munf.  406  ; 
Blake  r.  Peck,  11  Verm.  483;  Truett 
V.  Chaplin,  4  Hawks,  178. 

(e)  Sage  v.  Wilcox,  6  Conn.  81. 
Here  the  delay  was  otie  year.  Baker  v. 
Jacob,  1  Bulst.  41.  Here  the  delay  was 
a  fortnight,  or  thereabouts.  See  also 
ante,  n.  (6) 

(/)  Wade  V.  Simeon,  ante,n.  (c)  ;  Ila- 
maker  v.  Eberley,  2  Binn.  506. 

((7)  Lonsdale  v.  Brown,  4  Wash.  C- 
C.  il.  148  ;  Sidwell  v.  Evans,  1  Penn. 
385 ;  Downing  r.  Funk,  5  Kawle,  G9  ; 
Hakes  v.  Hotclikiss,  23  Verm.  235.  Sec 
also  ante,  n.  {h) 

[379] 


368* 


THE   LAW   OF   CONTRACTS. 


[book  II. 


prove  the  actual  time  of  forbearance,  and  if  this  be  judged  by 
the  Court  to  be  reasonable,  the  action  will  be  sustained  ;  (h) 
but  where  the  stay  of  action  is  wholly  uncertain,  or  such  as 
can  be  of  no  benefit  to  the  debtor  or  detriment  to  the  creditor, 
it  is  not  enough,  (i)  And  it  is  not  enough  to  allege  in  the 
declaration  that  disputes  and  controversies  existed  concerning 
a  certain  debt,  and  that  the  promise  on  which  the  action  is 
brought  was  made  in  consideration  that  the  plaintiff  pro- 
mised not  to  sue  for  that  debt;  for  this  is  no  allegation  that  a 
debt  actually  existed,  and  there  must  be  such  an  allegation  ; 
but  with  it  there  may  be  an  allegation  of  disputes  and  con- 
troversies concerning  its  amount,  (j)  It  seems  to  be  settled 
*that  a  general  agreement  to  forbear  all  suits  is  to  be  con- 
strued as  a  perpetual  forbearance  ;  (k)  and  a  promise  resting 
on  the  consideration  of  such  forbearance  is  no  longer  binding, 
when  the  suit,  which  was  to  be  forborne,  is  commenced. 

It  is  not  material  that  the  party  who  makes  the  promise, 
in  consideration  of  such  forbearance,  should  have  a  direct 
interest  in  the  suit  to  be  forborne,  or  be  directly  benefited  by 
the  delay.  (/)     It  is  enough  that  he  requests  such  forbear- 


(A)  King  V.  Upton,  4  Greenl.  387  ; 
Barnehurst  v.  Cabbot,  Hardr.  5. 

(i)  Jones  v.  Ashburnham,  4  East, 
455 ;  Nelson  v.  Serle,  4  M.  &  W.  795  ; 
Bixler  v.  Ream.  3  Fenn.  282.  See  also 
Rix  V.  Adams,  9  Verm.  233. 

(j)  Edwards  v.  Baugh,  11  M.  &  W. 
6^1 .  Lord  Abinger,  C.  B.  "  The  declara- 
tion only  alleges  that  certain  disputes  and 
controversies  were  pending  between  the 
plaintitf  and  the  defendant,  whether  the 
defendant  was  indebted  to  the  plaintiff 
in  a  certain  sum  of  money.  There  is 
nothing  iii  the  use  of  the  word  '  con- 
troversy '  to  render  this  a  good  allega- 
tion of  consideration.  The  controversy 
merely  is,  that  the  plaintiff  claims  the 
debt,  and  the  other  denies  it.  The 
case  might  have  been  different,  if  the 
declaration  had  said,  '  Whereas  the  de- 
fendant was  indebted  to  the  plaintiff  in 
divers  sums  of  money,  for  money  lent, 
and  also  on  an  account  stated,'  that  a 
dispute  arose  as  to  the  amount  of  the 
debt  so  due  ;  and  in  order  to  put  an  end 
to  all  controversies  i-especting  it,  it  was 
agreed  that  the  plaintiff,  in  consider- 
ation of  receiving  £100,  should  not  sue 

[380] 


the  defendant  in  respect  to  his  original 
claim.  In  that  case  the  plaintiff  would 
have  been  bound  to  prove  at  the  trial 
the  existence  of  a  debt  to  some  amount ; 
he  might  not,  indeed,  be  bound  to  prove 
the  full  amount,  but  simply  to  show 
such  a  claim  as  to  lay  a  reasonal)le 
ground  for  the  defendant's  making  the 
promise :  whereas,  in  the  present  case, 
he  would  not  have  to  prove  any  thing 
beyond  the  fact  that  there  had  been  a 
dispute  between  himself  and  the  defend- 
ant as  to  the  existence  of  a  debt.  A 
man  may  threaten  to  bring  an  action 
against  any  stranger  he  may  happen  to 
meet  in  the  street.  ^Vhere  an  action  is 
depending,  the  forbearing  to  prosecute 
it  is  a  sufficient  consideration  for  a  pro- 
mise to  pay  a  certain  sum  of  money: 
for,  besides  other  advantages,  the  party 
promising  would  save  the  extra  costs 
which  he  would  have  to  pay,  even  if  he 
were  successful." 

(/.■)  Clark  V.  Eussel,  3  Watts,  213; 
Sidwell  V.  Evans,  1  Penn.  385. 

(/)  Smith  V.  Algar,  1  B.  &  Ad.  603. 
See  Emmott  i:  Kearns,  5  Bing.  N.  C. 
559.     In  Maud  v.  Waterhouse,  2  C.  & 


CH.    I. 


CONSIDERATION. 


*369 


ance  ;  for  the  benefit  to  the  defendant  will  be  supposed  to 
extend  to  him,  and  it  would  also  be  enough  to  make  the 
consideration  valid,  that  the  creditor  is  injured  by  the  delay. 
But  there  must  have  been  some  party  who  could  have  been 
sued,  (m)  And  in  cases  in  which  the  person  to  be  forborne 
is  not  mentioned,  but  the  forbearance  may  be  understood  to 
be  forbearance  of  whoever  might  be  sued,  the  promise 
*founded  on  such  consideration  is  binding,  if  there  be  any 
person  liable  to  suit,  though  the  defendant  himself  be  not 
liable,  {n) 

In  genera],  a  waiver  of  any  legal  right,  at  the  request  of 
another  party,  is  a  sufficient  consideration  for  a  promise ;  (o) 
or  of  any  equitable  right;  (p)  and  so  it  is,  although  it  be 
a  waiver  of  action  for  a  tort,  by  committing  which  the  per- 
son doing  the  wrong  gained  a  benefit,  although  the  other 
party  suffered  from  it  no  real  injury,  (g) 

And  a    promise  to   pay   one  if   he    would  prove    a   debt 


p.  579,  it  was  held  that  if  a  person, 
employed  by  the  administrator  of  a  de- 
ceased debtor  to  wind  up  the  concerns 
of  the  deceased's  business,  g;ive  an  un- 
dertaking to  a  creditor  of  the  deceased, 
to  furnish  money  to  meet  an  acceptance 
which  sucli  creditor  has  given,  in  fur- 
tlierance  of  an  accommodation  arrange- 
ment for  delaying  payment,  in  the  hope 
that  funds  may  be  forthcoming,  he  is 
liable  on  such  undertaking,  though  he 
was  merely  a  clerk,  and  had  no  interest 
in  the  goods  sold  by  the  creditor,  and 
had  not  received  any  funds  which  he 
could  apply  to  the  discharge  of  the 
debt. 

(?/;)  Jones  v.  Ashburnham,  4  East, 
455;  Nelson  r.  Serle,  4  M.  &  W.  795. 
In  this  case,  to  a  declaration  in  debt  on 
a  promissory  note  for  £24,  dated  3d 
January,  1837,  made  by  the  defendant, 
payable  twelve  months  after  date  to  the 
plaintiff,  the  defendant  pleaded  that  one 
J.  W.,  before  and  at  his  death,  was  in- 
debted to  the  plaintiff  in  £24  for  goods 
sold,  which  sum  was  due  to  the  plain- 
tiff at  the  time  of  the  making  of  the 
promissory  note  in  the  declaration  men- 
tioned ;  tlmt  the  plaintiff,  after  the 
death  of  J.  W.,  applied  to  the  defend- 
ant for  payment;  whereupon  in  com- 
pliance witii  his  request,  the  defendant, 
after  the  death  of  J.  W.,  for  and  in  re- 


spect of  the  debt  so  remaining  due  to 
the  plaintiff  as  aforesaid,  and  for  no 
other  consideration  whatever,  made  and 
delivered  the  note  to  tiie  plaintiff,  and 
that  J.  W.  died  intestate,  and  that  at 
the  time  of  the  making  and  delivery  of 
the  note  no  administration  had  been 
granted  of  his  effects,  nor  was  there  any 
executor  or  executors  of  his  estate,  nor 
any  person  liable  for  the  debt  so  re- 
maining due  to  the  plaintiff"  as  afore- 
said ;  and  the  defendant  averred  that 
there  never  ivas  any  consideration  for  the 
said  note  except  as  aforesaid.  Field,  that 
the  plea  was  a  good  answer  to  the  de- 
claration. 

(")  See  Jones  r.  Ashburnham,  4 
East,  455. 

(o)  Stebbins  v.  Smith,  4  Pick.  97  : 
Smith  V.  Weed,  20  Wend.  184  ;  Ilaigli 
r.  Brooks,  2  Per.  &  Dav.  477,  3  Id.  452; 
Farmer  v.  Stewart,  2  New  Hainp.  97  ; 
Nicholson  v.  May,  Wright,  660:  Hin- 
man  r.  Moulton,  14  Johns.  460:  Wil- 
liams V.  Alexander,  4  Ired.  Eq.  R.  207  ; 
Waterman  t'.  Barratt,  4  Harnng.  311. 

(p)  Whitbeck  v.  Whitbeck,  9  Cow. 
266;  Thorpe  i'.  Thorpe,  1  Salk.  171, 
12  Mod.  435. 

(7)  Davis  V.  Morgan,  4  B.  &  C.  8 ; 
Brealey  v.  Andrew.  2  Nev.  &  P.  114, 
7  Ad.  ■&  El.  108. 

[381] 


370*  THE   LAW   OF   CONTRACTS.  [BOOK   II. 

against  a  deceased  husband,  (r)  or  to  pay  a  debt  denied  to  be 
due,  if  the  party  creditor  would  swear  to  it,  rests  upon  a 
sufficient  consideration.  And  in  an  action  upon  sucli  pro- 
mise, it  has  been  held  that  the  defendant  cannot  show  that 
the  plaintiff  was  mistaken  or  swore  falsely,  (s) 

The  incurring  of  a  liability,  in  consequence  of  the  promise 
of  another,  is  held  to  be  a  good  consideration ;  (/)  and  a  sub- 
sisting legal  obligation  to  do  a  thing  is  a  good  consideration 
for  a  promise  to  do  that  thing,  (w) 


*  SECTION  VI. 


ASSIGNMENT   OP  DEBT. 


An  assignment  of  a  debt  or  a  right  is  a  good  consider- 
ation for  a  promise  by  the  assignee,  (t*)  Such  assignment 
may  not  be  good  at  law ;  but  it  is  valid  in  equity  ;  and  courts 
of  law,  for  many  purposes,  and  to  a  certain  extent,  recog- 
nize the  validity  of  the  transfer,  if  the  assignee  obtains  a 
benefit  which  the  law  considers  a  sufficient  and  a  proper  con- 
sideration to  found  a  promise  upon,  (iv)  But  if  the  trans- 
action amounts  to  maintenance,  which  is  illegal,  the  con- 
sideration fails,  and  the  promise  is  void. 

{)•)  Traver  v. ,  1  Sid.  57.  liable  for  a   debt,  in  consideration   of 

(s)  Brooks  V.  Ball,  18  Johns.  3.37.  such  liability,  to  paj-,  if  waited  on  a  cer- 

(t)  Underbill  v.  Gibson,  2  New  Hamp.  tain  time,  creates  no  new  liability  ;  and 

352;  Homes   v.  Dana,  12  Ma.ss.   190;  that  a  promise  to  pay  the  debt  of  ano- 

Brvant  V.  Goodnow,  5  Pick.  228.     See  thcr,  if  waited  on  a  certain  time,  leaving 

also  Chapin  v.  Lapham,   20  Pick.  467  ;  tlie  debt    to    be   enforced    during  that 

Blake  v.   Cole,  22  Pick.  97 ;  Ward  v.  time  against  the  debtor,  is  not  binding. 

Fryer,  19  Wend.  494.    In  Baileyville  v.  (v)  Lodcr  v.  Chesleyn,  1   Sid.  212; 

Lowell,  20  Maine,  178,  it  was  determin-  Mouldsdale  v.  Birchalf,  2  Wm.  Bl.  820; 

ed  that  an  agreement  by  the  owner  of  Price  v.  Seaman,  4  B.  &  C.  525,  7  D.  & 

an  execution  against  the  inhabitants  of  E.  14  ;  Graham  v.  Gracie,  13  Q.  B.  548  : 

a  town  that  if  they  would  at  once  assess  Whittle  r.  Skinner,  23  Verm.  532  ;  Har- 

the   amount  required,  and  collect  the  rison  ;•.  Knight,  7  Texas,  47  :  Edson  v. 

same,  he  would  make  a  certain  discount,  Fuller,  2  Foster,  185. 

is  founded  on  sufficient  consideration,  (w)  Price  v.  Seaman,  4  B.  &  C.  525, 

and  will  be  enforced.  7  D.&  E.  14,  10  Moore.  34,  2  Bing. 

(i()  Cook  V.   Bradley,   7   Conn.  57;  437;  Peate  v.  Dicken,  1    C.  M.   &  E. 

Warner  r.  Boogc,  15  Johns.  233;  Jew-  430,  5  Tyr.   116.     And  an  assignment 

ett  V.  Warren,  12  Mass.  300.     In  Ens-  of  a  chose  in  action  need  not  be  by  deed, 

sell  r.  Buck,  11  Verm.  166,  it  M-as /ieW  Howell    v.    Mclvers,    4    T.    E.    690; 

that  a  promise  by  one  already  legally  Health  r.  Hall,  4  Taunt.  326. 

[382] 


CH.   I.] 


CONSIDERATION. 


*371 


SECTION  VII. 
WORK   AND  SERVICE. 


Work  and  service  are  a  very  common  consideration  for  a 
promise,  and  always  sufficient,  if  rendered  at  the  request  of 
the  party  promising,  (x)  This  request  may  often  be  im- 
plied ;  it  is  so  generally,  from  the  fact  that  the  party  making 
the  promise  accepts  and  holds  the  benefit  resulting  from  the 
work  or  service.  (//)  And  it  is  an  equally  sufficient  consider- 
*  ation  for  a  promise,  if  the  work  or  service  be  rendered  to  a 
third  party  at  the  request  of  the  promisor ;  (z)  and  such 
request  will  be  often  implied  from  very  slight  circumstances ; 
as  in  the  case  of  clothing  supplied  to  a  child,  the  mere  know- 
ledge and  silence  of  the  father  are  enough,  (a) 

If  the  work  and  service  rendered  are  merely  gratuitous, 
performed  for  the  defendant  without  his  request  or  privity, 
however  meritorious  or  beneficial  it  may  be,  it  affords  no 
cause  of  action,  (b)  and  perhaps  no  consideration  for  a  sub- 


(.r)  Hunt  V.  Bate,  Dyer,  272,  and 
notes;  1  Kol.  Abr.  11,  pi.  2,  3. 
In  Taylor  v.  Jones,  1  Lord  Raym. 
312,  it  was  held  that  giving  a  sol- 
dier leave  of  absence  at  the  instance 
of  a  third  person  is  a  good  consideration 
for  a  promise  from  him  to  the  captain 
to  bring  him  back  in  ten  days,  or  pay  a 
sum  of  money. 

y)  1  Wms.  Saund.  264,  note  (1); 
Tipper  v.  Bicknell,  3  Bing.  N.  C.  710. 
In  that  case  the  declaration  stated  that 
defendants  being  in  possession  of  cer- 
tain mortgage  deeds,  of  which  H.  R. 
was  desirous  to  obtain  an  assignment 
by  the  payment  of  £500,  the  plaintiff' 
consented  at  11.  E.'s  request  to  accept 
bills  to  that  amount  drawn  by  H.  R., 
upon  II.  R.'s  procuring  tiie  defendants 
to  deliver  the  mortgage  deeds  to  the 
plaintiff  as  security ;  that  the  defend- 
ants, in  consideration  of  llie  plaintiff 
accepting  the  bills,  undertook  to  deliver 
the  deeds  to  liim  upon  his  paying  them 
the  amount  of  the  bills.  ILld  a  suffi- 
cient consideration  for  the  defendant's 
promise. 

(~)  See  cases  cited  supra,  n.  (x.) 


(a)  Law  V.  Wilkin,  6  Ad.  &  El.  718 ; 
Nichole  v.  Allen,  3  C.  &  P.  36.  See, 
however,  Mortimorc  v.  Wriglit,  6  M.  & 
W.  485,  where  Lord  Abinger  denies 
these  cases  to  be  sound  law.  It  is  a 
question  for  the  jury  whether  tlie  cir- 
cumstances are  sufficient  in  any  ])articu- 
lar  case.  Baker  v.  Keen,  2  Stark.  501. 
See  fiirther,  as  to  this  point,  an^e,  p.  247, 
n.  («,)  et  seq. 

[b)  Hunt  V.  Bate,  Dyer,  272,  a;  1 
Rol.  Abr.  II,  pi.  1  ;  Hayes  v.  Warren, 
2  Str.  933 ;  Roscorla  v.  Thomas,  3  Q. 
B.  R.  234  ;  Jeremy  v.  Goochman,  Cro. 
Eliz.  442 ;  Dogget  v.  Vowell,  Moore, 
643.  See  .also  ante,  p.  358,  n.  (h).  —  So 
in  Frear  v.  Ilardenbergli,  5  Johns.  273, 
where  A.  entered  on  land  belonging  to 
B.,  and  without  his  knowledge  or  au- 
thority cleared  it,  made  improvements, 
and  erected  buildings,  and  B.  after- 
wards promised  to  pay  him  for  the  im- 
provements he  had  made,  it  was  held 
that,  the  work  having  been  done  and 
the  improvements  made  without  the  re- 
quest of  B.,  tlie  promise  was  a  nudum 
pactum,  on  wliich  no  action  could  be 
maintained.  —  But  pcriiaps  the  strong- 

[383] 


372*  THE   LAW   OP   CONTRACTS.  [bOOK  II. 

sequent  promise,  although,  as  we  have  seen,  a  precedent  re- 
quest may  in  law  be  presumed  from  the  promisor's  accept- 
ance of  the  service.  So  if  a  workman  employed  and  directed 
to  do  a  particular  thing  choose  to  do  some  other  thing,  with- 
out the  direction  or  assent  of  the  employer,  the  implied  pro- 
mise of  the  employer  to  pay  for  his  labor  will  not  extend  to 
the  new  work ;  (c)  but  being  accepted  by  the  employer,  it 
would  be  a  sufficient  consideration  for  a  promise  to  pay  for 
it,  and  such  acceptance  might  imply  such  promise. 


*  SECTION  VIII. 
TRUST    AND    CONFIDENCE. 

Trust  and  confidence  in  another  often  form  a  sufficient 
consideration  to  hold  that  other  to  his  undertaking.  As  if 
one  intrusts  money,  goods,  or  property  of  any  kind,  to  any 
person,  on  the  faith  of  that  person's  promise  to  act  in  a  cer- 
tain way  in  reference  to  those  goods,  or  that  money  or  pro- 
perty, such  person,  having  accepted  the  trust,  will  be  held  to 
his  promise,  because  the  trust  is  itself  a  sufficient  consider- 
ation for  a  promise  to  discharge  and  execute  the  trust  faith- 
fully, (d)     For  if  a  person  makes  a  mere  gratuitous  promise, 

est  case  to  be  found  in  the  American  See  also  Phetteplace  w.  Steere,  2  Johns, 

reports,  in  illustration  of  this  principle,  442. 

is  that  of  Bartholomew  v.  Jackson.  20  (d)  Doctor  &  Stud.  Dial.  2,  c.  24 ; 
Johns.  28.  A.  owned  a  wheat  stubble-  Holt,  C.  J.,  in  Coggs  v.  Bernard,  2  Ld. 
field,  in  which  B.  had  a  stack  of  wheat,  Eaym.  919.  Thus,  where  a  coftee- 
which  he  had  promised  to  remove  in  house  keeper  accejited  a  large  sum  of 
due  season  for  preparing  the  ground  for  money  from  the  plaintiff,  and  promised 
a  fall  crop.  The  time  for  its  removal  to  take  proper  care  of  it  for  a  certain 
having  arrived,  A.  sent  a  message  to  period,  it  was  holden  that  an  action. 
B.,  requesting  the  immediate  removal  would  lie  on  this  promise  for  gross  neg- 
of  the  stack  of  wheat,  as  he  wished,  on  lect  and  want  of  caution,  whereby  the 
the  next  day,  to  burn  the  stubble  on  the  money  was  lost.  Doorman  v.  Jenkins, 
field.  B.  having  agreed  to  remove  the  2  Ad.  &  El.  256.  So  where  the  plain- 
stack  by  ten  o'clock  the  next  morning,  tiff  delivered  the  sum  of  £700  to  the 
A.  waited  till  that  time,  and  then  set  defendant,  to  be  laid  out  by  him  in  the 
fire  to  the  stubble  in  a  remote  part  of  purchase  of  an  annuity,  and  the  defend- 
the  field,  The  fire  spreading  rapidly,  ant  promised  to  get  tlie  annuity  tre// and 
and  B.  not  appearing  to  remove  the  properly  secwed.  hut  was  gmhy  of  gross 
stack,  A.  removed  it  for  him.  Held,  neglect  and  want  of  care,  whereby  both 
that  as  A.  performed  the  service  without  the  money  and  the  annuity  were  lost,  it 
the  privity  or  request  of  B.,  he  was  not  was  holden  that  the  plaintiff'  was  enti- 
cntiilcd  to  recover  for  it.  tied  to  maintain  an  action  against  the 
(c)  Ilort  V.  Norton.   1   McCord,  22.  defendant,  to  recover  compensation  for 

[384] 


CH.  I.] 


CONSIDERATION. 


373 


and  then  enters  upon  the  performance  of  it,  he  is  held  to  a 
full  execution  of  all  he  has  undertaken.  Questions  involving 
this  principle  seldom  arise  except  in  the  case  of  bailments, 
and  will  be  considered  hereafter  when  we  treat  of  that  sub- 
ject. Here  we  will  say  only,  that,  in  general,  an  agent 
*without  remuneration  cannot  be  required  to  undertake  an 
employment  or  trust,  or  held  liable  for  not  doing  so  ;  but  if 
he  undertake  and  begin  it,  he  is  liable  for  the  consequences 
of  neglect  or  omission  in  completing  his  work. 

SECTION  IX. 
A   PROMISE   FOR   A   PROMISE. 


A  promise  is  a  good  consideration  for  a  promise,  (e)  And 
it  is  so  previous  to  performance  and  without  performance. 
As  if  one  promises  to  become  partner  in  a  firm,  and  another 


the  injury  he  had  sustained,  although 
the  defendant  was  to  receive  no  reiuard 
for  his  services.  AVhitehead  v.  Gree- 
tham,  10  Moore,  182,  2  Bing.  464, 
McClel.  &  Y.  205.  In  the  absence  of 
an  express  undertaking  to  procure  good 
security,  the  party  would  only  be  bound 
to  use  reasonable  care  and  caution, 
Dartnall  v.  Howard,  6  D.  &  R.  443,  4 
B.  &  C.  345.  In  Shillibeer  v.  Glyn, 
2  M.  &  W.  143,  the  declaration  stated 
that  the  plaintiff  being  about  to  proceed 
to  Northampton,  paid  money  to  the 
defendants  in  London,  that  they  might 
cause  it  to  be  paid  to  him  at  Nortiiamp- 
ton  on  a  certain  day;  that  the  defend- 
ants received  the  money  for  that  pur- 
pose from  the  plaintiff,  and  that  there- 
upon afterwards,  in  consideration  of  the 
premises,  the  defendants  promised  to 
cause  the  money  to  be  paid  to  the  plain- 
tiff at  Northampton.  The  court  were 
inclined  to  hold  that  the  declaration 
disclosed  a  suflicient  consideration.  See 
also  the  case  of  Wheatley  v.  Law,  Cro. 
Jac.  G68,  where  a  similar  declaration  was 
held  good,  if  the  case  is  correctly  re- 
ported. Where  the  defendant  received 
certain  notes  from  the  plaintiff  to  col- 
lect or  return,  it  was  held  that  the  de- 
livery of  the  notes  constituted  a  con- 
sideration for  the  defendant's  agreement, 
and  that  if  he  neglected  to  use  ordinary 


VOL.   I. 


33 


diligence  in  endeavoring  to  collect  them, 
he  was  liable  therefor  to  the  plaintiff. 
Robinson  v.  Threadgill,  13  Ire.  L.  39. 
And  where  the  plaintiff  intrusted  "  di- 
vers boilers  of  great  value  "  to  the  de- 
fendant, to  be  weighed,  and  the  defend- 
ant promised  to  return  them  in  the  same 
state  and  condition  that  they  were  in  at 
the  time  he  received  them,  but  sent 
them  back  in  detached  pieces  and  unfit 
for  use,  it  was  holden  that  the  plaintifl' 
was  entitled  to  maintain  an  action  on 
the  promise,  to  recover  compensation 
for  the  injury  he  had  sustained.  Bain- 
bridge  V.  Firmston,  1  P.  &  D.  3  ;  and 
see  Smith's  Leading  Cases,  vol.  i.  p.  96, 
cd.  1841. 

(e)  Nichols  v.  Raynbred,  Hob.  88  ; 
Hebden  v.  Rutter,  TSid.  180;  Strang- 
borough  V.  Warner,  4  Leon.  3;  Gower 
V.  Capper,  Cro.  El.  543 ;  Parke,  J.,  in 
Wentworth  v.  Bullen,  9  B.  &  C.  840 ; 
Cartwright  v.  Cooke,  3  B.  &  Ad.  703  ; 
Miller  v.  Drake,  1  Caines,  45;  James 
V.  Fulcrod,  5  Tex.  512.  So  in  White 
V.  Uemilt,  2  Hall,  405,  it  was  held 
that  in  an  action  for  the  breach  of  the 
defendant's  contract  to  sell  and  deliver 
certain  goods  to  tiie  plaintiff,  the  promise 
of  the  latter  to  accept  tlic  goods  and 
paij  for  them  is  a  good  consideration 
for  the  defendant's  promise  to  deliver- 
them.      So   in   Howe    v.    O'Mally,    1 

[385] 


374 


THE    LAW    OF   CONTRACTS. 


[book  II. 


promises  to  receive  him  into  the  firm,  both  of  these  promises 
are  binding,  each  being  a  sufficient  consideration  for  the 
other,  (/)  If  one  promises  to  teach  a  certain  trade,  this  is  a 
consideration  for  a  promise  to  remain  with  the  party  a  cer- 
tain term  of  time  to  learn,  and  serve  him  during  that  time; 
but,  without  such  promise  to  teach,  the  promise  to  remain 
and  serve,  though  it  be  made  in  expectation  of  instruction, 
is  void,  (g-)  The  reason  of  this  is,  that  a  promise  is  not  a 
*good  consideration  for  a  promise  unless  there  is  an  absolute 
mutuality  of  engagement,  so  that  each  party  has  the  right  at 
once  to  hold  the  other  to  a  positive  agreement,  (/i) 


Murph.  237,  A.  conveyed  to  B.  a  tract 
of  land,  containing  221  acres,  more  or 
less.  Some  years  afterwards  it  was 
mutually  agreed  to  have  the  land  sur- 
veyed, and  if  it  were  found  to  contain 
more  than  221  acres,  the  defendant 
should  pay  the  plaintiff  ten  dollars  per 
acre  for  the  excess  ;  if  it  fell  short,  the 
plaintiff  to  refund  to  the  defendant  at 
the  same  rate.  Here  are  mutual  pro- 
mises, and  one  is  a  good  consideration 
to  support  the  other. 

(/■)  McNeill  V.  Reed,  2  Moore  & 
Scott,  89  ;  S.  C.  9  Bing.  68. 

((j)  Thus,  where  the  defendant  had 
signed  a  written  agreement  to  the  fol- 
lowing effect :  "  I  herehy  agree  to  re- 
main with  Mrs.  Lees,  of  302  Regent 
Street,  Portland  Place,  for  two  years 
from  the  date  hereof,  for  the  purpose  of 
learning  the  business  of  a  dressmaker, 
&c.  As  witness  my  hand,  this  5th  day 
of  June,  1826,"  it  was  held,  that  as 
the  agreement  was  all  on  one  side,  no- 
thing being  contracted  to  be  done  or 
performed  by  Mrs.  Lees  as  a  considera- 
tion or  inducement  for  the  defendant's 
remaining  two  years  in  her  service,  it 
was  a  nudum  pactum ;  and  that  no 
action,  consequently  could  be  brought 
upon  it  against  tlie  defendant  for  leav- 
ing her  mistress,  and  commencing  busi- 
ness on  her  own  account  before  the 
expiration  of  the  two  vears.  Lees  v. 
Whitcomb,  2  M.  &  P.  86,  5  Bing.  34. 
So,  wliere  the  written  agreement  was  in 
the  following  terms :  ''  iMemorandum  of 
an  agreement  made  tlie  17th  of  August, 
1 833,  by  wliich  I,  "William  Bradley  of 
Sheffield,  do  agree  that  I  will  work  for 
and  with  John  Sykes,  of  Sheffield  afore- 
said, manufacturer  of  powder-flasks  and 
other  articles,  at  and  in  such  work  as  he 

[386] 


shall  order  and  direct,  and  no  other 
person  whatsoever,  from  this  day  hence- 
forth, during  and  until  the  expiration 
of  twelve  months,  and  so  on  from  twelve 
months  end  to  twelve  months  end,  until 
I  shall  give  the  said  John  Sykes  twelve 
months  notice  in  writing  that  I  shall 
quit  his  service,"  it  was  held,  that  as 
this  engagement  was  entirely  unilateral, 
and  nothing  was  to  be  given  or  done  by 
John  Sykes  as  a  consideration  for 
Bradley's  promise  to  work  for  him  by 
the  year,  and  no  one  else,  the  agree- 
ment was  a  nudum  pactum,  and  couhl  not 
be  enforced.  Svkes  v.  Dixon,  9  Ad.  & 
El.  693,  1  P.  &  I).  463.  See  also  Bates 
V.  Cort,  3  D.  &  R.  676.  So  where  the 
defendant  signed  the  following  instru- 
ment :  '■  Mr.  James ,  as  you  have 

a  claim  on  my  brother  for  £5  17s.  9d. 
for  boots  and  shoes,  I  hereby  undertake 
to  pay  the  amount  within  six  weeks 
from  this  date,  14th  January,  1833,"  it 
was  held,  that  the  promise  being  with- 
out consideration,  was  a  iwdum  pactitm, 
and  gave  no  cause  of  action.  James  v. 
Williams,  5  B.  &  Ad.  1109. 

(/()  McKinley  v.  Watkins,  13  111. 
140;  Lester  v.  Jewett,  12  B.irb.  502; 
Nichols  ?'.  Raynbred,  Hob.  88 ;  Kings- 
ton V.  Phelps,  Peake,  227  ;  Biddell 
}•.  Dowse,  6  B.  &  C.  255  ;  Hopkins  v. 
Logan,  5  M.  &  W.  241 ;  Dor»ey  v.  Rock- 
wood,  12  Howard,  126.  This  neces- 
sity for  the  mutuality  of  tlie  obligation, 
in  order  to  render  either  party  bound, 
is  well  illustrated  by  the  later  case  of 
the  Governor,  &c.  of  Copper  Miners  v. 
Fox,  3  E.  L.  &  E.  420,  20  Law  Journ. 
174.  In  that  case  a  corporation  biought 
an  action  on  an  executory  contract, 
seeking  to  recover  damages  for  its  non- 
performance.    The   declaration  stated, 


CH.  I. 


CONSIDERATION. 


375 


This  has  been  doubted,  from  the  seeming  want  of  mutu- 
ality in  many  cases  of  contract.  As  where  one  promises  to 
see  another  paid,  if  he  will  sell  goods  to  a  third  person ;  or 
promises  to  give  a  certain  sum  if  another  will  deliver  up 
certain  documents  or  securities,  or  if  he  will  forbear  a  de- 
mand or  suspend  legal  proceedings  or  the  like,  (i)     Here  it 


that  in  consideration  that  the  plaintiffs 
would  sell  to  the  defendants  iron  rails, 
the  defendants  agreed  to  furnish  to  the 
plaintiffs  sections  of  the  said  railways, 
averring  mutual  promises,  and  alleging 
as  a  breach  the  non-delivery  of  the  sec- 
tions by  the  defendants.  It  appeared 
that  the  plaintiffs  were  incorporated  by 
a  cliarter,  for  the  purpose  of  carrying 
on  the  business  of  copper  miners,  and 
that  the  contract  in  question,  which 
was  not  under  seal,  had  been  made  by 
an  agent  on  behalf  of  the  plaintiffs  with 
the  defendants.  Held,  that  tlie  action 
could  not  be  maintained  by  the  corpo- 
ration, as  the  contract  was  not  under 
seal,  and  did  not  fall  within  any  of  the 
exceptions  to  the  general  rule,  that  a 
corporation  can  only  bind  itself  by 
deed ;  that  the  contract  was  not  inci- 
dental or  ancillary  to  carrying  on  the 
business  of  copper  miners,  and  was 
therefore  not  binding  on  the  corpora- 
tion ;  that  no  other  charter  authorizing 
the  company  to  deal  in  iron  could  be 
presumed  to  exist,  the  charter  which 
was  given  in  evidence  not  supporting 
such  an  authority ;  and  that,  as  the 
corporation  could  not  be  sued  upon  this 
contract,  and  as  the  alleged  promise  by 
them  formed  the  consideration  for  the 
defendants'  promise,  the  corporation 
could  not  sue  upon  the  contract.  And 
semblc,  that  the  doctrine  cannot  be  sup- 
ported, that  a  corporation  may  sue  as 
plaintiff  upon  a  simple  contract,  upon 
the  ground  that  by  so  doing  they  are 
estopped  from  objecting  that  the  con- 
tract was  not  binding  upon  them.  At 
all  events  such  an  estoppel  could  only 
support  an  action  of  covenant,  as  upon 
a  contract  under  seal.  See  also  editor's 
note  on  p.  426.  —  If,  however,  a  con- 
tract like  the  above,  although  not  ori- 
ginally binding  upon  one  party,  by  rea- 
son of  some  defect  or  informality  in  the 
execution,  or  for  any  other  cause,  and 
therefore  not  o?(r/i«a//y  binding  upon  the 
other  party,  nevertheless  be  executed  by 
the  party  not  originally  liable,  the  other 
party  cannot  refuse  performance  on  the 


ground  that  the  contract  was  not  origi- 
nallv  binding.  Fishmonger's  Company 
I'.  Robertson,  5  M.  &  Gr.  131.  In  like 
manner  in  Phelps  *'.  Townsend,  8  Pick. 
392,  (1829,)  where  the  defendant,  by  an 
agreement  signed  only  by  himself,  had 
placed  his  son  as  an  apprentice  to  the 
plaintiffs  to  learn  the  art  of  printing, 
therein  promising  that  his  son  should 
stay  with  them  until  he  was  twenty-one, 
&c. ;  which  the  son  failed  to  perform. 
On  the  trial  the  defendant  objected 
that  the  contract  was  void  for  want  of 
mutualitj',  it  not  being  signed  by  the 
plaintiffs,  and  that  there  was  no  obli- 
gation on  the  plaintiffs  to  do  any  thing 
which  might  form  a  consideration  for 
the  defendant's  promise.  But  the  court 
said,  "  that  the  acceptance  of  the  contract 
by  the pla'mtiffs,  and  the  execution  of  it  in 
part  by  receiving  the  apprentice,  created  an 
obligation  on  their  part  to  maintain  and 
instruct  the  defendunCs  son."  Sec  also 
Commercial  Bank  v.  Nolan,  7  How. 
(Miss.)  508. 

((')  In  Kennaway  v.  Treleavan,  5  M. 
&  W.  501,  Parke,  Baron,  is  reported  to 
have  said,  (while  discussing  the  suffi- 
ciency of  the  consideration  for  a  guaran- 
ty which  was  in  these  terms  : — "  Truro, 
July  12th,  1838.  Messrs.  Kennaway  & 
Co.  Gentlemen — I  hereby  guarantee 
to  you,  Messrs.  Kennaway  &  Co.,  the 
sum  of  ^250,  in  case  Mr.  Paddon,  of 
&c.,  should  default  in  his  capacity  of 
agent  and  traveller  to  you.  William 
S.  Treleavan.")  "There  is  a  case  in 
the  books,  of  Newbury  v.  Armstong,  6 
Bing.  201,  which  strongly  resembles  the 
present.  There  the  guarantee  was  in 
these  terms  :  '  I  agree  to  be  security  to 
you  for  T.  C.  for  whatever,  while  in 
your  employ,  you  may  trust  him  with, 
and  in  case  of  default  to  make  the  same 
good;'  and  the  contract  was  held  to  be 
good,  on  the  ground  that  the  future 
employment  of  the  party  was  a  suffi- 
cient consideration.  It  is  said,  and 
truly,  that  in  the  present  case  there  was 
no  binding  contract  on  the  plaintiffs, 
and  that,  notwithstanding  the  guaran- 

[387] 


'616*  THE   LAW   OF   CONTRACTS.  [BOOK   II. 

is  said  that  the  party  making  the  promise  is  bound,  while 
the  other  party  is  at  liberty  to  do  any  thing  or  nothing.  But 
this  is  a  mistake.  The  party  making  the  promise  is  bound 
to  nothing  until  the  promisee  within  a  reasonable  time  en- 
gages to  do,  or  else  does  or  begins  to  do,  the  thing  which 
is  the  condition  of  the  first  promise.  Until  such  engage- 
ment or  such  doing,  the  promisor  may  withdraw  his  promise, 
because  there  is  no  mutuality,  and  therefore  no  consideration 
for  it.  But  after  an  engagement  on  the  part  of  the  pro- 
misee which  is  sufficient  to  bind  him,  then  the  promisor  is 
*  bound  also,  because  there  is  now  a  promise  for  a  promise, 
with  entire  mutuality  of  obligation.  So,  if  the  promisee 
begins  to  do  the  thing,  in  a  way  which  binds  him  to  com- 
plete it,  here  also  is  a  mutuality  of  obligation.  But  if  with- 
out any  promise  whatever  the  promisee  does  the  thing 
required,  then  the  promisor  is  bound  on  another  ground. 
The  thing  done  is  itself  a  sufficient  and  a  completed  consi- 
deration ;  and  the  original  promise  to  do  something,  if  the 
other  party  would  do  something,  is  a  continuing  promise 
until  that  other  party  does  the  thing  required  of  him. 

A  very  large  proportion  of  our  most  common  contracts 
rests  upon  this  principle.  Thus,  in  the  contract  of  sale,  the 
proposed  buyer  says,  I  will  give  you  so  much  for  these 
goods  ;  and  he  may  withdraw  this  offer  before  it  is  accepted, 
and  if  his  withdrawal  reaches  the  seller  before  the  seller  has 
accepted,  the  obligation  of  the  buyer  is  extinguished ;  but  if 
not  withdrawn  it  remains  as  a  continuing  offer  for  a  reason- 


tee,  they  were  not  bound   to   employ  party  who  gave  it.    It  is  therefore  no 

Paddon.     But  a  great  number  of  the  objection   ia    the   present   case   to   say 

cases  are  of  contracts  not  binding  on  that  the  plaintiffs  were  not  obliged  to 

both  sides  at  the  time  when  made,  and  take   Paddon   into  their  service  ;  they 

in  which  the  whole  duty  to  be  perform-  might  do  so  or  not,  as  they  pleased ; 

ed  rests  with  one  of  the  contracting  par-  but  liaving  once  done  so,  tlie  guarantee 

ties.     A  guarantee  falls  under  that  class,  attaches,    and   the   defendant    becomes 

when  a  person  says,  '  In  case  you  choose  responsible  for  the  default."     See  also 

to  employ  this  man  as  your  agent  for  Yard    v.   Eland,    1     Ld.    Raym.    368. 

a   week,  I   will   be   responsible  for  all  L'Amoreux   v.    Gould,  3  Selden,  349. 

such  sums  as  he  shall  receive  during  The  binding  obligation  of  contracts  or 

that  time,  and  neglect  to  pay  over  to  promises  to  do  something,  provided,  or 

you,'  the  party  indemnified  is  not  there-  on  condition,  or  when  the  otlier  party 

"fore  bound  to  employ  the  person  de-  shall  do  some  other  thing,  is  also  recog-' 

signaled   by  tiie  guarantee ;   but  if  he  nizcd  in  Mozley  v.  Tinkler,  1  Cr.  Mees. 

do  employ  him,  tlien  the  guarantee  at-  &  Ros.  692. 
taches    and    becomes    binding  on  the 

[388] 


CH.    I.]  CONSIDERATION.  -376 

able  time,  and,  if  accepted  within  this  time,  both  parties  are 
now  bound  as  by  a  promise  for  a  promise ;  there  is  an  entire 
mutuality  of  obligation.  The  buyer  may  tender  the  price 
and  demand  the  goods,  and  the  seller  may  tender  the  goods 
and  demand  the  price,  (j)  This  subject,  however,  belongs 
rather  to  the  topic  "  Assent." 

A  written  agreement  to  submit  disputes  and  claims  to 
arbitration  must  be  signed  by  all  parties,  or  it  is  obligatory 
upon  none.  For  no  party  can  hold  another  to  the  award, 
without  showing  that  he  himself  would  have  been  equally 
bound  by  it.  (k) 

It  should  be  added  that  the  common  law  makes  an  excep- 
tion to  this  requirement  of  mutuality,  in  the  case  of  contracts 
between  infants  and  persons  of  full  age;  following  in  this 
respect  the  civil  law,  and  the  law  prevailing  on  the  continent 
of  Europe.  The  infant  is  not  bound,  while  the  adult  is  ;  the 
infant  may  avoid  his  contract,  but  the  adult  cannot.  (/) 
This  rule  has  been  applied  to  the  contract  of  future  mar- 
riage, as  well  as  to  other  contracts.  Where  a  man  of  full 
age  enters  into  such  contract  with  a  woman  who  is  a  minor, 
if  he  breaks  the  contract  she  has  her  remedy  by  action,  (m) 
If  she  breaks  it  he  has  no  action.  But  a  woman  under  age 
may  perhaps  be  bound  by  a  marriage  contract  properly 
securing  her  interests,  and  deliberately  entered  into,  with  the 
approbation  of  her  parents  or  guardians,  (n) 

( j)  Thus,  in  White  v.  Demilt,  2  Hall,  (/)  See  ante,  p.  *276. 
405',  the  plaintiff  brought  an  action  for  ,.  j^^u  „  ^^^d  Clarencieux,  2  Str. 
the  non-dehyery  of  certain  goods  sold  937    'jj^^j  „_  p^^^,,     5  c^,^.  4-5     ^il- 
him  by  the  defendant.     One  ground  of  j,,^.^^'^,    ^           7   q^^^    22;  Cannon  v. 
defence  was  want  of  consideration  for  ^Isbury,  1   A.   K.  Marsh.  78.-So  an 
the  defendant  s  promise.     But  the  court  j^f.^nt  'i^ay   maintain  an  action   on   a 
said  the  promise  of  the  plaintiff  to  ac-  n,crcantile  contract,  althougli  he  would 
cept  and  pay  for  the  goods  was  a  good  ^^^^   ^^   ^^^^^^   himself.      Warwick   v. 
consideration  for  the  defendants    pro-  ^ruce,  2  M.  &  S.  205. 
mise  to  deliver  them,     hee  also  Bab- 
cock  V.  Wilson,  17  Maine,  372  :  Apple-  {n)  Ainslie  v.  Medlycott,  9  Ves.  14  ; 
ton  t».  Chase,  19  Maine,  74.  Simson  v.  Jones,  2  R.   &  Mylne,  365; 

(k)  Kingston  v.  Phelps,  Peake,  227  ;  Durnford  v.  Lane,   1  Bro.  C.  C.  Ill; 

Bidden  v.  Dowse,  6  B.  &C.  255,  9  l).&  Eonblanque   on  Eq.  74;  and  see  ante, 

K.  404  ;  AntraniiJ.  Chace,  15  East,  212.  p.  277. 

33*  [389] 

\ 


377 


THE   LAW    OP   CONTRACTS. 


[book   II. 


SECTION  X. 

SUBSCRIPTION   AND   CONTRIBUTION. 

Where  several  promise  to  contribute  to  a  common  object, 
desired  by  all,  the  promise  of  each  may  be  a  good  considera- 
tion for  the  promise  of  the  others,  (o)  If  there  be  a  chartered 
company  or  corporation,  one  who  subscribes  agreeably  to  the 
statute  and  by-laws  acquires  a  right  to  his  shares ;  and  as 
the  company  is  under  an  obligation  to  give  him  the  shares, 
this  would  be  a  consideration  for  the  promise,  and  would 
make  his  subscription  obligatory  on  him.  (/?) 


(o)  Society  in  Troy  v.  Perry,  6  New 
Hamp.  164;  George  v.  Harris,  4  New 
Harap.  533  ;  Hanson  v.  Stetson,  5  Pick. 
50G ;  State  Treasurer  i'.  Cross,  9  Verm. 
289  ;  University  of  Vermont  v.  Buell,  2 
Verm.  48 ;  Commissioners  v.  Perry,  5 
Ham.  58.  —  It  is  on  this  ground  that 
subscriptions  to  charitable  or  benevolent 
objects  have  often  been  held  binding, 
when  there  was  no  other  consideration 
for  each  subscriber's  promise  than  the 
promise  of  other  subscribers.  It  must 
be  confessed,  however,  that  there  are 
many  authorities  which  seem  to  hold  it 
necessary  in  such  cases  that  there  shall 
be  some  promise  or  engagement  by  the 
committee,  corporation,  or  other  person 
to  whom  the  subscription  paper  runs,  or 
that  something  should  be  done  on  their 
part,  as  the  erection  of  the  building, 
providing  materials  or  the  like,  in  order 
to  render  the  subscription  binding. 
The  cases  of  Limerick  Academy  v. 
Davis,  11  Mass.  114;  Bridgewater 
Academy  v.  Gilbert,  2  Pick.  579  ;  Troy 
Academy  v.  Nelson,  24  Verm.  189 ; 
Barnes  v.  Perine,  9  Barb.  202;  Wilson 
V.  Baptist  Education  Soc.  10  Barb. 
309;  Gait's  Exrs.  v.  Swain,  9  Gratt. 
633  ;  and  others,  favor  this  view.  See 
also  No.  42  Am.  Jur.  281-283;  Pox- 
croft  Academy  v.  Favor,  4  Greenl.  R. 
382,  (Bennett's  ed.)  and  note.  This 
point  was  very  fully  discussed  in  the 
late  case  of  Hamilton  College  v.  Stewart, 
2  Den.  403,  and  1  Comst.  581.  It  was 
there  held,  that  the  endowment  of  a  lite- 
rary institution  is  not  a  sufficient  con- 
sideration to  uphold  a  subscription  to  a 
[390] 


fund  designed  for  that  object.  And  al- 
though there  is  annexed  to  the  subscrip- 
tion a  condition  that  the  subscribers  are 
not  to  be  bound  unless  a  given  amount 
shall  be  raised,  no  request  can  be  im- 
plied therefrom  against  tlie  subscribers 
that  the  institution  shall  perform  the 
services  and  incur  the  expenses  neces- 
sary to  fill  up  the  subscription.  Ac- 
cordingly, where  the  defendant  sub- 
scribed $800  to  a  fund  for  the  payment 
of  the  salaries  of  the  officers  of  Hamil- 
ton College,  and  a  condition  was  an- 
nexed that  the  subscribers  were  not  to  be 
bound  unless  the  aggregate  amount  of 
subscriptions  and  contributions  should 
be  $50,000  ;  it  was  held,  that  there  was 
no  consideration  for  the  undertaking, 
and  that  no  action  would  lie  upon  it, 
although  there  was  evidence  tending  to 
show  that  the  whole  amount  had  been 
subscribed  or  contributed  according  to 
the  terms  of  the  condition.  But  see 
Barnes  r.  Perine,  9  Barb.  202  ;  John- 
ston I'.  Wabash  College,  2  Cart.  (Ind.) 
555. 

{p)  Chester  Glass  Company  v.  Dew- 
ey, IG  Mass.  94.  In  this  case  certain 
individuals  having  associated  in  writing 
for  the  purpose  of  carrying  on  a  par- 
ticular manufacture,  and  being  after- 
wards incorporated  for  the  same  pur- 
pose, one,  who  subscribed  the  M'riting 
after  the  incorporation,  became  thereby 
a  member  of  the  corporation,  and  was 
held  to  pay  the  sum  he  had  subscribed. 
But  where  one  subscribed  an  agree- 
ment to  take  shares  in  a  corporation 
after  the  passage  of  the  act  of  incorpo- 


CH.  I.] 


CONSIDERATION'. 


378 


On  the  important  question,  how  far  voluntary  subscrip- 
tions for  charitable  purposes,  as  for  alms,  education,  religion, 
or  other  public  uses,  are  binding,  the  law  has  in  this  country 
passed  through  some  fluctuation,  and  cannot  now  be  regard- 
ed as  settled.  Where  advances  have  been  made,  or  expenses 
or  liabilities  incurred  by  others  in  consequence  of  such  sub- 
scriptions, before  any  notice  of  withdrawal,  this  should,  on 
general  principles,  be  deemed  sufficient  to  make  them  obli- 
gatory, provided  the  advances  were  authorized  by  a  fair  and 
reasonable  dependence  on  the  subscriptions  ;  and  this  rule 
seems  to  be  well  established,  (q)  Farther  than  this  it  is  not 
easy  to  go,  unless  such  subscriptions  are  held  to  be  binding 
merely  on  grounds  of  public  policy.  To  say  that  they  are 
obligatory  because  they  are  all  promises,  and  the  promise  of 
each  subscriber  is  a  valid  consideration  for  the  promise  of 
every  other,  seems  to  be  reasoning  in  a  vicious  circle.  The 
very  question  is,  are  the  promises  binding ;  for  if  not  then 
they  are  no  consideration  for  each  other.  To  say  that  they 
are  binding,  because  they  are  such  considerations,  is  only  to 
say  that  they  are  binding  because  they  are  binding;  it  as- 
sumes the  very  thing  in  question,  (r) 


ration,  but  before  any  meeting  of  the 
persons  incorporated  and  their  asso- 
ciates, it  was  Iteld,  that  such  agreement 
could  furnish  no  evidence  of  a  (-ontract 
■with  the  corporation.  New  Bedford 
Turnpike  v.  Adams,  8  Mass.  1.38.  And 
there  is  no  privity  of  contract  between 
a  party  signing  and  a  committee  ap- 
pointed by  his  co-signers  at  a  meeting 
which  lie  did  not  attend ;  although  the 
committee  proceeded  and  expended 
monev.  Curry  v.  Rogers,  1  Foster, 
247.  ' 

{q)  Bryant  v.  Goodnow,  5  Pick.  228  ; 
Warren  v.  Stearns,  19  Pick.  73;  Robert- 
son V.  March,  .3  Scam.  198;  Macon  v. 
Sheppard,  2  Humph.  335  ;  University  of 
Vermont  v.  Buell,  2  Verm.  48 ;  Canal 
Fund  V.  Perry,  5  Ilam.  ."jS  ;  Barnes  v. 
Perinc,  9  Barb.  202  ;  Homes  v.  Dana, 
12  Mass.  190.  In  this  last  case  sundry 
persons  agreed  to  lend  to  the  editors  of 
the  Boston  Patriot  the  sums  set  against 
their  names,  which  were  to  be  paid  to 
one  of  their  number  as  agent.  Tliis 
agent  therefore  made  advances  to  the 
editors,  and  it  was  held  that  he  had  an 


action  against  eacli  subscriber.  The 
court  said  the  only  question  which  could 
arise  in  the  case  was,  wiiether  Larkin 
was  induced  to  advance  his  money  by 
the  subscription.  See  also  Thompson 
V.  Page,  1  Met.  570,  and  Farmington 
Academy  v.  Allen,  14  i\Iass.  172. 

(r)  That  such  subscriptions  are  valid 
where  no  expenses  or  liabilities  are  in- 
curred because  of  tiiem,  and  on  the 
ground  of  mutuality  of  promise,  seems 
to  be  at  least  implied  in  some  cases. 
See  George  v.  Harris,  4  N.  H.  533. 
From  this  case  it  would  appear  that 
such  a  subscription  may  at  all  events 
be  treated  as  an  agreement  of  the  sub- 
scribers by  and  with  each  other,  upon 
the  failure  to  perform  which  by  any  one 
of  them,  the  others  can  join  in  an  action 
of  assumpsit  against  him  to  recover  the 
amount  of  his  subscription.  See  also 
Society  in  Troy  i\  Perry,  6  New  Hamp. 
164;  Same  v.  Goddard,  7  New  Hamp. 
435  ;  Fisher  v.  Ellis.  3  Pick.  323  ;  Am- 
herst Academy  v.  Cowls,  G  Pick.  427. 
In  the  last  two  cases  a  promissory  note 
was  given  in  discharge  of  the  subscrip- 

[391] 


379  THE  LAW  OF   CONTRACTS.  [BOOK  II. 

In  general,  subscriptions  on  certain  conditions  in  favor  of 
the  party  subscribing  are  binding  when  the  acts  stipulated 
as  conditions  are  performed,  (s) 


SECTION  XI. 


OF   CONSIDERATION  VOID    IN   PART. 

It  sometimes  happens  that  a  consideration  is  void  in  part; 
and  the  question  arises  whether  this  fact  makes  the  whole 
consideration  invalid,  and  the  promise  itself  of  no  obligation. 
If  one  or  more  of  several  considerations,  which  are  recited  as 
the  ground  of  a  promise,  be  only  frivolous  and  insufficient, 
but  not  illegal,  and  others  are  good  and  sufHcient,  then  un- 
doubtedly the  consideration  may  be  severed,  and  those  which 
are  void  disregarded,  while  those  which  are  valid  will  sustain 
the  promise,  (f)  But  where  the  consideration  is  entire  and 
incapable  of  severance,  then  it  must  be  wholly  good  or  wholly 
bad.  If  the  promise  be  entire,  and  not  in  writing,  and  a  part 
of  it  relate  to  a  matter  which  by  the  statute  of  frauds  should 
be  promised  in  writing,  such  part,  being  void,  avoids  the 
whole  contract;  (u)  but  if  it  be  such  in  its  nature  that  it  may 

tion.     But  it  is  not  easy  to  see  how  that  cases  so  obscurely  stated  that  it  is  not 

strengthened  the   obligation.     In   Ives  easy  to  see  whether  the  court  intend  to 

V.  Sterling,  6  Met.  310,  the  court  notice  say  that  such  subscriptions  are  binding 

the  conflict  of  opinion,  without  attempt-  without  the  proof  of  expense  or  liability 

ing  to  reconcile  it.     In  New  York  the  actually    incurred    in    consequence   of 

authorities  are  in  similar  conflict.     See  them.     See    Caul   v.   Gibson,   3   Barr, 

Whitestown  v.  Stone,  7   Johns.   112;  416;  Collier  v.  Baptist  Educational  So- 

McAuley   v.   Billinger,   20   Johns.  89.  ciety,    8    B.    Monroe,    68 ;    Barnes   v. 

In    Stewart  v.   Trustees  of    Hamilton  Ferine,  9  Barb.  202. 

College,  1    Comst.  581,  2  Denio,  403,  (s)    Williams    College  v.  Danforth, 

Walworth,    Chancellor,    had    held,  that  12  Pick.  541. 

where  several  persons  subscribe  for  an  {t)  Parish  v.    Stone,  14  Pick.  198; 

object  in  which  all   are  interested,  as  King  v.  Sears,  2  C.  M.  &  E.  48 ;  Jones 

the  support  of  institutions  of  religion  v.  Waite,  5  Bing.  N.  C.  341  ;  Sheerman 

or  learning   in  the   community  where  v.  Thompson,  11  Ad.  &  El.  1027  ;  Best 

they  reside,  the  promise  of  each  sub-  i\  Jolly,  1  Sid.  38  ;  Cripps  v.  Golding,  1 

scrfber    is    the    consideration    of    the  Rol.  Abr.  30,  Action  sur   Case.   pi.  2 ; 

promise  of  each  other.    But  the  Court  Bradbume  ?;.Bradbunie,  Cro.  Eliz.  149; 

of  Appeals   does  not  appear  to  adopt  Coulston   v.   Carr,   Id.   848 ;    Crisp   v. 

this   view.      It  was   held,   however,   in  Gamel,  Cro.  Jac.   127  ;  Shackell  i\  Ro- 

both  courts,  that  if  the  trustees  agreed  sier,  2  Bing.  N.  C.  646.  per  Tindal,  C  J. 

to  endeavor  to   raise   a  certain   sum  in  («)   Mechelen   v.    Wallace,   7  Ad.  & 

consideration  of  the   subscription,  this  El.  49,  2  N.  &  P.  224.     Here  the  decla- 

■would  make   it  binding.      There  are  ration    stated  that    defendant    wished 

[392] 


CH.  I.]  CONSIDERATION.  *380 

be  divided  and  the  part  not  required  to  be  in  writing  by  the 
statute  may  be  enforced  without  injustice  to  the  promisor, 
that  portion  of  the  agreement  will  be  binding,  (uu) 


*  SECTION  XII. 


ILLEGALITY   OF   CONSIDERATION. 

In  general,  if  any  part  of  the  entire  consideration  for  a 
promise,  or  any  part  of  an  entire  promise,  be  illegal,  whe- 
ther by  statute  or  at  common  law,  the  whole  contract  is 
void,  (v)  But  a  distinction  must  be  taken  between  the  cases 
in  which  the  consideration  is  illegal  in  part,  and  those  in 
which  the  promise  founded  on  the  consideration  is  illegal  in 
part.  If  any  part  of  a  consideration  is  illegal,  the  whole 
consideration  is  void;  because  public  policy  will  not  permit 
a  party  to  enforce  a  promise  which  he  has  obtained  by  an 
illegal  act  or  an  illegal  promise,  although  he  may  have  con- 
nected with  this  act  or  promise  another  which  is  legal.  But 
if  one  gives  a  good  and  valid  consideration,  and  thereupon 
another  promises  to  do  two  things,  one  legal  and  the  other 

plaintiff  to  hire  of  her  a  house,  and  fur-  liams,  10  B.  &  C.  664  ;  Wood  v.  Benson, 

niture  for  the  same,  at  the  rent  of,  &c. ;  2  Tyr.  9.3  ;  Mayficid  v.  Wadsley,  3  B. 

and   tlicreupon,   in   consideration    that  &  C.  357  ;  Forgret  v.  Moore,  16  E.  L. 

plaintiff  would  take  possession  of  the  &  E.  466 ;  Irvine  v.  Stone,  6  Cush.  508. 

said  house  partly  furnished,  and  would,  ,     ,  t     •             c<.           /.  ,~i    i     ^r.c 

ifcomplete  furniture  were  sent  into  tlic  <"")  ^'"^'^"'^   "•   ^'<^"°'    ^  P'''^  ^f^ 

said  house  bv  defendant  in  a  reasonable  W°«<i  %^!"'°m'     .n  "^  t       't>   "^    .  "' 

time,    become    tenant  to   defendant  of  Mather  Boston  Monthly  Law  Reporter, 

the  said  house,  with  all  tlie  said  furni-  ^'^P'^'  ^^*^*- 

ture,  at  the  aforesaid  rent,  and  pay  the         (y)  Collins    v.  Blantern,    2  Wilson, 

same  quarterly  from  a  certain  day,  to  347  ;  Benyon  v.  Nettlcfold,  2  E.  L.  & 

wit,  &c.,  defendant  promised  plaintiff  to  E.  113;  Donallen  v.   Lennox,  6  Dana, 

send  into  the  said  house,  within  a  rea-  91  ;  Brown  v.  Langford,  3  Bibb,  500; 

sonable  time  after  plaintiff's  taldng  pos-  Ilinesburgli   v.   Sumner,  9    Verm.  23; 

session,  all  the  furniture  necessary,  &c.  Armstrong   v.   Toler,    11   Wheat.  258 ; 

//eW,  that  the  defendant's  agreement  to  Woodruffs.  Hinman,  11    Verm.  592: 

send  in   furniture   was  an   inseparable  Deering  v.  Chapman,  22   Maine,  488 : 

part  of  a   contract   for   an    interest   in  Filson  v.  Himes,  5  Barr,  452  ;  Dedham 

lands,  and  therefore  came  within  stat.  29,  Bank  r.  Chickcring,  4  Pick.  314  ;  Coul- 

Car.  2,  which,  in  such  case,  requires  tlic  ter  u.    Kobertson,    14    Sm.    &   M.    18; 

agreement,  or  a  memorandum  thereof.  Gamble  r.  Grimes,  2  Cart.  (Ind.)  392. 

to  be  in  writing.     See    also  Chatcr  v.  See  also  Howden  v.  Simi)son.  10  Ad.& 

Beckett,  7  T.  11.  203;  Lord  Lexington  El.  815  ;  Hull  v.  Dyson,  10  E.  L.  &  E. 

V.  Clarke,  2  Vent.  223  ;  Thomas  v.  Wil-  424. 

[393] 


381 


THE   LAW   OF   CONTRACTS. 


[book  II. 


illegal,  he  shall  be  held  to  do  that  which  is  legal,  (iv)  unless 
the  two  are  so  mingled  and  bound  together  that  they  cannot 
be  separated;  in  which  case  the  whole  promise  is  void. 

A  distinction  has  been  taken  between  the  partial  illegality 
of  a  consideration  when  against  a  statute,  and  when  against 
common  law.  There  are  cases  which  sustain  this  distinc- 
tion, (x)  but  we  think  it  rests  upon  no  sound  principle.  A 
*  statute  has  no  more  power  in  avoiding  a  contract  partially 
opposed  to  it  than  the  common  law,  (//)  unless  it  contain  an 
express  provision  that  all  such  agreements  shall  be  wholly 
void,  (z)  and  then  the  contract  is  void  although  a  promissory 
note  in  the  hands  of  an  innocent  indorsee,  (zz)  But,  while 
the  law  is  sufficiently  distinct  where  the  whole  consideration 
or  the  whole  promise  is  illegal,  questions  still  remain,  w^here 


(w)  Thus  in  the  Bishop  of  Chester  v. 
John  Freeland,  Ley,  79,  Hutlon,  J.,  lays 
down  the  rule  that  when  a  good  thing 
and  a  void  thing  are  put  together  in  the 
same  grant,  the  common  hiw  makes 
such  construction  that  the  grant  sliall 
be  good  for  that  which  is  good,  and 
void  for  that  which  is  void.  This  prin- 
ciple is  also  distinctly  recognized  in 
Kerrison  v.  Cole,  8  East,  236.  See 
also  Norton  v.  Simmes,  Hob.  14.  And 
in  the  late  case  of  Leavitt  i'.  Palmer,  3 
Comst.  37,  Branson,  J.,  said:  —  "It  is 
undoubtedly  true  that  where  a  deed  or 
other  contract  contains  distinct  under- 
takings, some  of  which  are  legal  and 
some  illegal,  the  former  will  be  in  cer- 
tain cases  upheld,  though  the  latter  are 
void."  And  the  principle  was  fully 
recognized  in  a  late  case  before  the 
Privy  Council.  Bank  of  Australasia  v. 
Bank  of  Australia,  12  Jur.  189,  6  E.  F. 
Moore,  152.  See  also  Chase's  Ex.  v. 
Burkholder,  18  Penn.  50. 

(r)  Norton  v.  Simmes,  Hob.  14  ;  Ma- 
leverer  v.  Redshaw,  1  Mod.  35.  Tivisden, 
J.;  Com.  Dig.  Covenant,  (F.);  Bac. 
Abr.  Conditions,  (K.);  Hacketf.  Tilly, 
11  Mod.  93  ;  Butler  v.  Wigge,  1  Wms. 
Saund.  66 ;  a.  n.  1  ;  1  Pow.  on  Cont. 
199;  Lee  i;.  Coleshill.  Cro.  Eliz.  529; 
Pearson  i\  Humes,  Carter,  230 ;  Mos- 
dell  V.  Middleton,  1  Vent.  237  ;  Van 
Dyck  V-  Van  Beuren,  1  Johns.  302. 

(_?/)  The  merit  of  exploding  this  vene- 
nerable  error  of  supposing  a  distinc- 
tion between  contracts  void  by  sta- 
tute and  contracts   void    at    common 

[394] 


law,  belongs  to  the  Hon.  Theron  Met- 
calf  of  Massachusetts,  who  with  his  well 
known  acuteness  and  accuracy  has 
pointed  out  the  origin  of  the  error,  and 
shown  its  fallacy.  23  Am.  Jur.  2.  And 
it  may  now  be  considered  as  fully  esta- 
blished, that  although  a  contract  con- 
tain some  provisions  or  promises  which 
are  void  by  statute,  yet,  if  it  also  em- 
brace other  agreements  which  would  be, 
if  standing  alone,  valid,  they  may  still 
be  enforced.  Sec  Monys  v.  Leake,  8 
T.  R.  411;  Kerrison  v.  Cole,  8  East, 
231;  Doe  v.  Pitcher,  6  Taunt.  359; 
Greenwood  v.  Bishop  of  London,  5 
Taunt.  727  ;  Newman  v.  Newman,  4  M. 
&  S.  66;  Wigg  V.  Shuttleworth,  13 
East,  87  ;  Gaskell  v.  King,  1 1  East.  165  ; 
Howe  V.  Synge,  15  East,  440 ;  Tinck- 
ler  V.  Prentice,  4  Taunt.  549 ;  Fuller  v. 
Abbott,  4  Taunt.  105  ;  Shackel  v.  Ro- 
sier, 2  Bing.  N.  C.  646 ;  Jones  v.  Waite, 
5  Bing.  N.  C.  841.  The  recent  case  of 
Jarvis  v.  Peck,  1  Hoff.  479,  so  far  as  it 
may  be  considered  as  having  recognized 
any  distinction  of  this  kind,  is  not  in 
our  opinion  sound  law. 

(z)  Thus,  where  the  statute  declares 
a  certain  contract  to  be  •'  void  to  all  in- 
tents and  purposes  whatever."  it  has 
been  held  that  if  such  a  contract  also 
contain  stipulations  not  within  tlie  in- 
tent of  the  statute,  the  latter  will  be 
considered  void  by  force  of  the  statute. 
See  Crosley  v.  Arkwright,  2  T.  R.  603  ; 
Dann  v.  Dolman,  5  T.  R.  641. 

{zz)  Bridge  r.  Hubbard,  15  Mass.  96; 
Hay  V.  Ayling,  3  E.  L.  &  E.  416  &  note. 


CH.  I.] 


CONSIDERATION. 


382 


the  illegality  is  but  partial,  which  can  only  be  determined  by 
further  adjudication. 

Where  the  consideration  is  altogether  illegal,  it  is  insuffi- 
cient to  sustain  a  promise,  and  the  agreement  is  wholly  void. 
This  is  so  equally,  whether  the  law  which  is  violated  be  sta- 
tute law  or  common  law.  It  has  been  held  in  England,  (a) 
that  where  a  statute  provided  a  penalty  for  an  act,  without 
prohibiting  the  act  in  express  terms,  there  the  penalty  was 
the  only  legal  consequence  of  a  violation  of  the  law,  and  a 
contract  which  implied  or  required  such  violation  was  never- 
theless valid.  But  Lord  Holt  (b)  denied  the  doctrine  ;  and  Sir 
James  Mansfield  established  a  better  rule  of  law,  (c)  holding 
that  where  a  statute  provides  a  penalty  for  an  act,  this  is  a 
prohibition  of  the  act.  We  apprehend  that  this  has  always 
*been  the  prevailing,  if  not  the  uncontradicted  rule  of  law,  on 
this  subject,  in  this  country.  ((/) 


(a)  Coinyns  t'.  Boycr,  Cro.  Eliz. 
485  ;  and  see  Gremare  v.  Le  Clerk  Bois 
Valon,  2  Camp.  144. 

(b)  Bartlett  v.  Vinor,  Cartli.  252, 
Skin.  322.  Holt,  C.  J.,  here  said  :  — 
"  Every  contract  made  for  or  about  any 
matter  or  thing  wliich  is  prohibited,  and 
made  unhiwful  by  any  statute,  is  a  void 
contract,  thougli  the  statute  itself  does 
not  mention  tliat  it  shall  be  so,  but  only 
inflicts  a  penalty  on  the  offender,  be- 
cause a  penalty  implies  a  prohibition, 
though  there  are  no  prohibitory  words 
in  the  statute." 

(c)  Drury  v.  Dcfontaine,  1  Taunt. 
136. 

(d)  This  principle  is  sustained  by- 
numerous  adjudged  cases.  Wheeler  v. 
Russell,  17  Mass.  258  ;  Coombs  f.  Eme- 
ry, 14  Maine,  404  ;  Springfield  Bank  v. 
Merrick,  14  Mass.  322;  llusscU  c.  De 
Grand,  15  Mass.  39;  Seidenbender  i'. 
Charles,  4  Serg.  &  Rawle,  159;  Mit- 
chell v.  Smiili,  1  Binn.  118;  Sliarp  r. 
Tcese,  4  Ilalst.  352 ;  De  Bcgnis  v.  Arm- 
istead,  10  Bing.  107,  3  Moore  &  Scott, 
516;  Cope  v.  Rowlands,  2  M.  &  W. 
149 ;  Fergusson  v.  Norman,  5  Bing.  N. 
C.  86;  Territt  v.  Bartlett,  21  Verm. 
184;  Bancroft  v.  Dumas,  21  Verm. 
456;  Bell  v.  Quin,  2  Sandf.  146;  Eber- 
man  v.  Reitzell,  1  Watts  &  Scrg.  181  ; 
Halo  V.  Henderson,  4  Humph.  199; 
Elkins  I'.  Parkhurst,  17   Venn.  105. — 


And  the  repeal  of  a  prohibitory  act  will 
not  per  se  render  valid  a  contract  made 
during  the  existence  of  the  act,  contrary 
to  its  provisions.  But  the  legislature 
may  give  a  remedy  by  express  enact- 
ment. Milne  v.  Huber,  3  McLean,  212. 
A  recent  application  of  the  general 
principle  of  the  text  was  made  in  Jack- 
son V.  Walker,  5  Hill,  27.  By  tlie  laws 
of  New  York  every  contribution  of  mo- 
ney intended  to  promote  the  election  of 
any  person  or  ticket  is  prohibited  by  the 
statute,  (1  R.  S.  136,  §  6,)  except  for 
defraying  tlie  ex])enses  of  printing,  and 
the  circulation  of  votes,  handbills,  and 
other  papers,  previous  to  such  election  ; 
and  this,  whether  the  immediate  pur- 
pose for  which  the  money  is  designed 
be  in  itself  corrupt  or  not.  Accordingly, 
where  the  defendant  agreed  to  pay  the 
I)laintiff  $1000,  in  consideration  that  the 
latter,  who  had  built  a  log  cabin,  would 
keep  it  open  for  the  accommodation  of 
political  meetings  to  further  the  success 
of  certain  persons  nominated  for  mem- 
bers of  Congress,  &c.,  it  was  held  that 
the  agreement  was  illegal,  and  could 
not  be  enforced.  See  also  the  recent 
case  of  Cundell  v.  ])awson,  4  C.  B.  376. 
In  this  case  the  same  principle  was  ap- 
plied, but  Wilde,  C.  J.,  intimated  that 
statutes  enacted  simply  for  the  security 
of  the  revenue  did  not  come  within  tlie 
principle.     And  in  Smith  v.  Mawliood, 

[395] 


-382 


THE   LAW   OF   CONTRACTS. 


[book   II. 


SECTION  XIII. 


IMPOSSIBLE   CONSIDERATIONS. 


Impossible  considerations  are  wholly  bad  and  insufRcient. 
We  have  seen  that  a  consideration  which  one  cannot  per- 
form without  a  breach  of  the  law  is  bad,  and  so  is  one  which 
cannot  be  performed  at  all.  (e)     The  reason  is  obvious;  from 


14  M.  &  W.  452,  it  was  held  that  the 
excise  act  requiring  certain  things  of 
dealers  in  tobacco  did  not  avoid  a  con- 
tract of  sale  of  tobacco  by  one  not  com- 
plying with  these  requisitions,  as  their 
effect  is  only  to  impose  a  penalty.  But 
where  it  appears  to  be  the  intention  of 
the  legislature  to  prohibit  a  contract  as 
well  as  to  impose  a  penalty  for  making 
it,  such  contract  is  illegal  and  void, 
although  tlic  prohibition  be  intended 
only  for  purposes  of  revenue. 

(e)  5  Vin.  Abr.  110,  111,  Condition, 
(C,)  a.  (D,)  a;  1  Rol.  Abr.  419;  Co. 
Litt.  206,  a;  2  Bl.  Com.  341  ;  Shep. 
Touch.  164.  See  22  Am.  Jur.  20- 
22.  In  Ncrot  v.  Wallace,  3  T.  R. 
17,  a  promise  was  made  by  the  defend- 
ant to  the  assignees  of  a  bankrupt,  M'hcn 
the  latter  was  on  his  last  examination, 
that  in  consideiation  that  the  assignees 
would  forbear  to  have  the  bankrupt  ex- 
amined, and  that  the  commissioners 
would  desist  from  taking  such  examina- 
tion touching  moneys  alleged  to  have 
been  received  by  the  bankrupt,  and  not 
accounted  for,  he,  the  defendant,  M'ould 
pay  such  money  to  the  assignees.  This 
promise  was  held  l)y  the  court  to  be  U- 
legal,  as  being  against  the  policy  of  the 
bankrupt  laws.  And  Lord  Kcm/on  ob- 
.servcd:  —  "I  do  not  say  that  this  is 
nudum  pactum;  but  the  ground  on  which 
I  found  my  judgment  is  this,  that  every 
person,  who  in  consideration  of  some 
advantage,  cither  to  himself  or  to  ano- 
ther, promises  a  benefit,  must  have  tlie 
power  of  coiiferrin(]  that  benefit  up  to  the 
extent  to  which  that  benefit  professes  to  (jo, 
and  that  not  only  in  fact,  but  in  iaiv.  Now 
the  promise  made  by  the  assignees  in 
this  case,  which  was  the  consideration 
of  the  defendant's  promise,  was  not  in 
their  power  to  perform,  because  the 
commissioners  had  nevertheless  a  right 

[396] 


to  examine  the  bankrupt.  And  no  col- 
lusion of  the  assignees  could  deprive 
the  creditors  of  the  right  of  examination 
which  the  commissioners  would  procure 
them.  The  assignees  did  not  stipulate 
only  for  their  own  acts,  but  also  that 
the  commissioners  should  forbear  to 
examine  the  bankrupt;  but  clearly  they 
had  no  right  to  tie  up  the  hands  of  the 
commissioners  by  any  such  agreement." 
And  Ashurst,  J.,  observed  :  —  "In  order 
to  found  a  consideration  for  a  promise, 
it  is  necessary  that  the  party  by  whom 
the  promise  is  made  should  have  the 
poicer  of  carrying  it  into  efiect,  and  se- 
condly, that  the  thing  to  be  done  should 
in  itself  be  legal.  Now  it  seems  to  me 
that  tlie  consideration  for  tliis  promise 
is  void,  on  both  these  grounds.  The 
assignees  have  no  right  to  control  the 
discretion  of  the  commissioners;  and  it 
would  be  criminal  in  them  to  enter  into 
such  an  agreement,  because  it  is  their 
duty  to  examine  the  bankrupt  fully,  and 
the  creditors  may  call  on  them  to  per- 
form it.  And  for  the  same  reason  the 
thing  to  be  done  is  also  illegal."  —  And 
so  in  Bates  v.  Cort,  2  B.  &  C.  474,  which 
may  perhaps  be  regarded  as  an  extreme 
case,  the  declaration  stated,  that  by 
agreement  between  the  plaintiff  and  G. 
G.,  the  plaintifT  agreed  to  sell  and  deli- 
ver to  G.  G.  a  lace  machine  for  .£220,  to 
be  paid  thus  :  .£40  on  deliver)-,  and  the 
residue  by  weekly  payments  of  one 
pound,  which  were  to  be  paid  to  the 
defendant  as  trustee  for  the  plaintiff, 
and  in  case  of  any  default  the  plaintiff 
was  to  have  back  the  machine,  and  in 
consideration  of  the  premises,  and  of  the 
plaintiff  at  the  request  of  the  defendant 
appointing  him  to  receive  the  weekly 
instalments,  the  defendant  promised  to 
take  the  machine  and  pay  the  balance, 
should  there  be  any  default  in  G.  G.  in 


CH.   I.] 


CONSIDERATION. 


383-*384 


such  consideration  no  possible  benefit  or  advantage  could  be 
derived  to  the  one  party,  and  no  detriment  to  the  other,  and 
if  that  which  is  offered  or  provided  as  a  consideration  cannot 
happen,  the  mere  words  alone  are  a  nullity.  It  is  undoubt- 
edly possible,  that  one  may  make  a  promise  which  it  is 
utterly  impossible  to  perform,  and  nevertheless  the  promisee 
may  derive  a  positive  advantage  from  the  mere  fact  that  the 
promise  is  made.  In  such  a  case,  supposing  the  transaction 
free  from  all  taint  of  fraud,  this  advantage  would  be  a  good 
consideration,  but  not  the  promise  by  itself. 

But  a  promise  is  not  void,  merely  because  it  is  difficult,  or 
even  improbable.  And  it  seems  that  if  the  impossibility 
*applies  to  the  promisor  personally,  there  being  neither  natu- 
ral impossibility  in  the  thing,  nor  illegality  nor  immorality, 
then  he  is  bound  by  his  undertaking,  and  it  is  a  good  con- 
sideration for  the  promise  of  another.  (/)     The  reason  of  this 


the  weekly  payments.  It  was  held  that 
this  promise  was  nudum  pactum,  and 
voidf  And  by  the  court:  —  "The  de- 
claration affects  to  show  the  legal  ope- 
ration of  the  agreement.  Now  that 
states  that  the  agreement  bound  the 
defendant  to  take  tlie  machine,  not  the 
plaintiff  to  deliver  it.  The  declaration 
does  not  even  show  that  it  was  in  the 
plaintiff's  power  to  deliver  the  machine, 
for  it  is  not  stated  that  he  had  ever  got 
it  back  from  the  original  vendee.  There 
certainly  is  an  allegation  of  willingness 
to  let  the  defendant  take  the  machine, 
but  that  does  not  appear  to  have  been 
in  pursuance  of  any  preexisting  agree- 
ment, nor  does  the  whole  import  any 
obligation  on  the  plaintiff  to  let  the 
defendant  take  it.  The  declaration  is 
therefore  bad,  no  sufficient  considera- 
tion for  the  defendant's  promise  being 
shown." 

(/)  See  Co.  Litt.  206,  a,  n.  1 ;  Piatt 
on  "Cov.  569 ;  3  Chittv  on  Com.  Law, 
101  •,  Blight  V.  Paire.'s  B.  &  P.  296, 
note;  Worsley  y.  Wood.  6  T.  R.  718, 
Kenyan,  C.  J.  And  sec  Tufnell  v.  Con- 
stable, 7  Ad.  &  El.  798,  arrjiiendo.  In 
this  case  tiiere  was  a  covenant  to  invest 
a  sum  in  bank  annuities,  or  other  go- 
vernment stock,  in  the  coqiorate  names 
of  the  archdeacon  of  C,  the  vicar  of  W., 
and  the  churchwardens  of  W.,  the  divi- 
dends to  be  lield  and  received  by  the 
archdeacon,  vicar,  and  churchwardens, 

VOL.  I.  34 


for  the  time  being,  in  trust  for  the  sup- 
port of  a  parish  school  for  poor  child- 
ren, and  in  further  trust  for  the  dispo- 
sition of  coals,  &c.,  among  poor  persons 
of  the  parish.  Held,  on  general  de- 
murrer to  a  declaration,  that  an  action 
lay  upon  such  covenant,  no  impossi- 
bility of  performance  appearing,  inas- 
much as  the  investment  might  at  an}' 
rate  be  lawfully  made  in  the  corporate 
names  of  the  present  archdeacon,  vicar, 
and  churchwardens.  And  Liitledule,  J., 
said,  in  giving  judgment:  —  ''The  de- 
fendants allege  that  they  cannot  invest 
this  stock,  because  the  parties  named  in 
the  bequest  are  not  corporations  for 
that  purpose,  and  the  investment  could 
not  be  effected  at  the  bank.  But  the 
answer  is,  let  them  show  that  they  have 
applied  at  the  bank  and  to  the  proper 
officers,  and  tliat  it  is  impossible  to 
make  the  investment  witli  tlieir  consent. 
I  should  say  then  that  no  sufficient  an- 
swer was  given,  the  law  not  forbidding 
the  thing  to  be  done,  and  tiiere  being 
no  breach  of  moral  duty  involved  in  it, 
and  the  defendants  being  under  cove- 
nant to  perform  it.  But,  if  an  actual 
impossibility  were  sliown,  the  parties 
might  go  to  a  court  of  equity  to  restrain 
proceedings  in  an  action  on  the  cove- 
nant, they  showing  tliat  they  had  done 
all  in  their  power  to  fulfil  it.  The  tes- 
tator in  this  case  must  be  taken  to  have 
known,  when  he  covenanted,  whether 

[397] 


385*  THE   LAW   OF   CONTKACTS.  [bOOK   II. 

appears  to  be,  that  if  a  party  binds  himself  to  such  an  under- 
taking, he  may  either  procure  the  thing  to  be  done  by  those 
who  can  do  it,  or  else  pay  damages  for  the  not  doing  it. 
The  party  receiving  such  a  promise  may  know  that  the  pro- 
misor himself  cannot  do  the  thing  he  undertakes,  but  may 
not  know  that  he  has  not  already  made,  or  has  it  not  in  his 
power  to  make,  such  arrangement  with  him  who  can  do  it 
as  will  secure  its  being  done.  He  has  a  right,  therefore,  to 
expect  that  it  will  be  done,  and  to  pay  for  such  promise  or 
undertaking,  either  by  his  own  promise  or  otherwise.  But  if 
the  thing  undertaken  is  in  its  own  nature  and  obviously  im- 
possible, he  cannot  expect  it  will  be  done  ;  and  to  enter  into 
any  transaction  based  upon  such  undertaking  is  a  fraud  or  a 
folly  which  the  law  will  not  sanction.  Hence,  it  w^ould  seem 
*that  an  engagement  by  one,  entered  into  with  a  second 
party,  that  a  third  party  shall  do  something  which  the  first 
cannot  do,  is  a  good  consideration  for  a  promise  by  the 
second  party,  (g)  The  cases  which  seem  to  oppose  this 
rule  are,  generally  at  least,  cases  in  which  the  consideration 
was  open  to  the  objection  of  illegality,  (h) 

By  Code  Nap.  B.  3,  tit.  3,  ch.  4,  s.  1,  it  appears  that  while 
a  promise  to  do  an  impossible  thing  is  null,  a  promise  not  to 
do  an  impossible  thing  is  a  sufficient  foundation  for  an  obli- 

the  law  -would  permit  a  fulfilment  of    plaintifl".     McNeill  v.  Eecd,  2  Moore  & 
the   covenant    or  not;    or,  perhaps   it     S.  89,  s.  c.  9  Bing.  68. 

should  rather  be  said,  whether  the  course         n\  rri,,,,    ;.,    tt, ,.  ,.    n;uu^^^    o 

„           .             ,,      '        ,,        .    ,,       .^  (/()    ihus   m   Harvev  v.  (jibbons,  2 

of  practice  would  or  would  not  allow  i  l^V.  161,  which  was  aVrit  of  error  on 

to  be  earned  into  eflect.  -So  it  will  ^  judgment  in  Shrewsbury  court,  where 

be  no  excuse  for  the  non-performance  ,/  pfaintiff  declared  that  he  being  bail- 

of  an  agreement  to  deliver  goods  of  a  .^.  /^  j_  g    ^^^^  defendant,  in  consider- 

ccrtam  quantity  or  qua  ity,  that  they  ^^.^^^  ^j^^^  /^;  ^.^^^^^  ^.^^/^^^,.^^  /^ .  ,^  ^^  ^20 

could  not  be  obtained  at  the  particular  ,     .re. <^^a  <■„  „  - a  i-^A  • 

,        ,,  ,      ^        ^^    ,  due  to  J.  o.,  promised  to  expend  i.40  m 

season  when  the  contract  was  to  be  ex-  ■  •  ,        „  „<■  ti,„     i  •   .•iv- 

^   I      r^-,   ■  /-,  n  15  .  /-I  repairing  a  barge  ot  the  plaintitis ;  — 

C "  5     Y^ZTv'  S'on'JVet   C  g'     ^-^-''-^  ^^^  J^^S^-^  f^'  '^«  ^^^^' 
C.  91  ,   louqua  t.  rsixon,  i  let.  o.  O.     ^^^^^^  ^^^^^  assumpsit, y^&x(i  reversed,  the 

"",',   m  .      ,  ^,  consideration  beinir  )'&aa/.  for  the  plain- 

(q)   Ihus  a  promise  to  procure  the  .-a-  .   v    i    "'       "  i  w   i  i- 

^^ '    ^    c     ^      t^     -i  ^    .\  ■  ^  tin  cannot  discharge  a  debt  due  to  his 

consent  of  a  landlord  to  the  assignment  ^^^^^^    Although  diis  decision  is  some- 

f  rfJ  ^'^''ofo      f '"f  ■   i^^'^J''^ '-'•  V''^"'  times  cited  as  showing  that  a  contract 

5  Taunt.  249.     And  where  one  of  seve-  j^  ^.^j^    -^^^^  consideration  is  impos- 

ral  partners  in  a /zjvn  agreed  to  introduce  „..i      .„*  ;►  „, ,,.  u„,.„^*„,i „         ^  ^ 

1^1-  ^-a- 1     ^  \  •  »     •.   •■.  sible,  vet  It  may  be  rested  more  properly 

the  paintift  (a  stranger)  into  it,  it  was  „     ,  -      ',    .,  „^   ,,  „  •',    *  .  - 

,     .\   ,^1    .\  ^  Tj     1  on  the  ground   that  the  consideration 

decided  that  he  agreement  was  valid,  al-  ^^^  j^    =^j      ^j^^  ^^^^  ,^^  ^^^.^  ^^ 

though  the  other  partners  were  Ignorant    Nerot  t'  Wallace,  3   T.  R    \1,  supra, 


of  its  existence,  and  their  assent  was  of 
course  essential  to  the  admission  of  the 

[398] 


(6.) 


CH.   I.]  CONSIDERATION.  *386 

gation  which  rests  upon  it.     We  have  no  such  distinction  in 
the  common  law. 


SECTION  XIV. 

FAILURE   OF   CONSIDERATION. 

Where  the  consideration  appears  to  be  valuable  and  suffi- 
cient, but  turns  out  to  be  wholly  false  or  a  mere  nullity,  or 
where  it  may  have  been  actually  good,  but  before  any  part 
of  the  contract  has  been  performed  by  either  party,  and  be- 
fore any  benefit  has  been  derived  from  it  to  the  party  paying 
or  depositing  money  for  such  consideration,  the  consideration 
wholly  fails,  there  a  promise  resting  on  this  consideration  is 
no  longer  obligatory,  and  the  party  paying  or  depositing 
money  upon  it  can  recover  it  back.  (^)  But  where  the  con- 
*sideration  fails  only  in  part^  principles  analogous  to  those 
which  govern  an  inquiry  into  the  adequacy  of  a  consider- 
ation would  be  applied  to  it.  If  there  were  a  substantial 
consideration  left,  although  much  diminished,  it  would  still 
suffice  to  sustain  the  contract.  But  if  the  diminution  or 
failure  were  such  as  in  effect  and  reality  to  take  away  all  the 
value  of  the  consideration,  it  would  be  regarded  as  one  that 
had  wholly  failed.  But  if  the.  consideration,  and  the  agree- 
ment founded  upon  it,  both  consisted  of  several  parts,  and  a 
part  of  the  consideration  failed,  and  the  appropriate  part  of  the 
agreement  could  be  apportioned  to  it,  then  they  might  be  treat- 
ed as  several  contracts,  and  a  recovery  of  money  paid  be  had 
accordingly,  (j)     It  is  often  difficult  to  say  whether  a  con- 

{i)  Woodward  v.  Cowing,  13  Mass.  in  such  a  case  is  the  sum  paid;  no  al- 

216;  Moses  v.  Macferlan,  2  Bun*.  1012  ;  lowance  is  to  be  made  for  the  plaintiff's 

Spring  V.  Coffin,  10  Mass.  34;  Lacoste  loss  and  disappointment.    Nccly.  Deens, 

V.   riotard,    1    Rep.    Const.    Ct.    467;  1  N.  &  McCord,  210. 

Wharton  v.  O'Hara,  2  N.  &  McCord,  (./)  FrankHu  v.  Miller,  4  Ad.  &  El. 

65 ;  Pettibone  v.  Roberts,  2  Root,  258 ;  605,  Litlltdalc,  J.    In  this  case  the  dc- 

Boyd    V.   Anderson,   1    Overton,  43S;  claration   stated  that  defendant,  being 

Murray  v.  Carret,  3  Call,  373 ;  Treat  v.  indebted  to  certain  persons,  agreed   to 

Orono,   26    Maine,   217  ;    Sanford    v.  repay  the   plaintiff  the  amount  of  all 

Dodd,  2  Day,  437 ;  Colville  v.  Bcsley,  accounts  which  he  should  settle  for  de- 

2  Dcnio,  139.     The  failure  of  consider-  fendant ;  and  also  to  pay  plaintiff  .£40 

ation  must  be  iolcd.     Charlton  ?;.  Lay,  a  quarter  on  stated  days,  till  the  said 

5    Humph.    496 ;    Dean   u.    Mason,  "4  debts    should    be    fully    settled  ;    and 

Conn.  428.    The  measure  of  damages  plaintiff  agreed  to  advance  to  defendant 

[399] 


387 


THE   LAW   OF   CONTKACTS. 


[book   II. 


sideratioii    is   divisible  and  capable  of  apportionment,  or  so 
entire  that  it  must  stand  or  fall  together,  (k)     Perhaps  no 


.£1  per  week,  and  certain  other  sums, 
out  of  the  sums  of  £40 ;  that,  in  con- 
sideration of  plaintiff's  promise,  defend- 
ant agreed  to  perform  the  contract  on 
his  part;  that  plaintiff  paid  debts  for 
defendant  to  divers  persons,  (naming 
them,)  to  the  amount  of  £281  :  that  the 
whole  amount  of  debts  was  not  yet  set- 
tled :  and  that  several  sums  of  £40  had 
become  due  from  defendant  under  the 
agreement,  which  had  been  paid  to  the 
amount  of  £1G0  only,  but  the  rest  were 
unpaid.  Flea,  as  to'two  of  the  sums  of 
£40,  that,  before  they  became  due,  plain- 
tiff had  omitted  topay  certain  of  the  debts 
due  to  creditors  of  defendant,  (naming 
them,)  other  than  the  creditors  named 
in  the  declaration,  which  he  might  have 
paid ;  and  had  also  omitted,  after  the 
last  payment  of  £40,  to  pay  defendant 
£1  per  week ;  wherefore  defendant  in  a 
reasonable  time,  and  before  the  two 
sums  in  question  were  due,  rescinded 
the  contract.  Eeplication,  that,  before 
and  at  the  time  of  the  last  payment  of 
£40,  defendant  was  indebted  to  plaintiff 
in  the  sum  of  £50  and  more,  in  respect 
of  tlie  moneys  paid  by  plaintiff  for  de- 
fendant as  in  the  first  count  mentioned  ; 
and  that  the  said  £40  was  insufficient 
to  discharge  the  amount  in  which  de- 
fendant was  so  indebted  to  plaintiff,  and 
for  which  the  agreement  was  a  security. 
IJeld,  tliat  the  plea  was  bad,  as  showing, 
at  most,  only  a  partial  failure  of  per- 
formance by  the  plaintiff,  which  did  not 
authorize  the  defendant  to  rescind  the 
contract. —  So  in  Ritchie  v.  Atkinson, 
10  East,  295,  where, the  master  and  the 
freighter  of  a  vessel  of  400  tons  mutu- 
ally agreed  in  writing  that  the  ship,  being 
every  way  fitted  for  the  voyage,  should 
with  all  convenient  speed  proceed  to  St. 
Petersburg,  and  there  load  from  the 
freighter's  factors  a  complete  cargo  of 
hemp  and  iron,  and  proceed  therewith 
to  London,  and  ddiver  the  same  on  hcing 
paid  JreigJd  for  hemp  5/.  per  ton,  for 
iron  55.  a  ton,  &c.,  one  half  to  be  paid 
on  right  delivery,  the  other  at  three 
months :  held  that  the  delivery  of  a  com- 
plete cargo  was  not  a  condition  prece- 
dent ;  but  that  the  master  might  reco- 
ver freight  for  a  short  cargo  at  the  sti- 
pulated rates  per  ton  :  the  freighter 
having  his  remedy  in  damages  for  such 
short  delivery. — Likewise  in  Eoberts  i'. 

[400] 


Ilavelock,  3  B.  &  Ad.  404,  a  ship  out- 
ward bound  witli  goods,  being  damaged 
at  sea,  put  into  a  harbor  to  receive  some 
repairs  which  had  become  necessarj'  for 
the  continuance  of  the  voyage,  and  a 
shipwright  was  engaged,  and  undertook 
to  put  her  into  thorough  repair.  Before 
this  was  completed  lie  required  payment 
for  the  work  already  done,  without 
which  he  refused  to  proceed ;  and  the 
vessel  remained  in  an  unfit  state  for 
sailing.  Held,  that  the  shipwright  might 
maintain  an  action  for  the  work  alrea- 
dy done,  though  the  repair  was  incom- 
plete, and  the  vessel  thereby  kept  from 
continuing  her  voyage,  at  the  time  when 
the  action  was  brought. 

(Jc)  Thus  in  Adlard  v.  Booth,  7  C  & 
P.  108,  it  was  held,  that  v/here  a  printer 
has  been  employed  to  print  a  work,  of 
which  the  impression  is  to  be  a  certain 
number  of  copies,  if  a  fire  break  out 
and  consume  the  premises  before  the 
whole  number  have  been  worked  off, 
the  printer  cannot  I'ecover  any  thing, 
although  a  part  have  actually  been  de- 
livered. While  in  Cutler  r.  Close,  5 
C  &  P.  337,  where  a  party  contracted 
to  supply  and  erect  a  warm  air  appa- 
ratus, for  a  certain  sum,  it  was  held,  in 
an  action  for  the  price,  (the  defence  to 
which  was,  that  the  apparatus  did  not 
answer,)  that,  if  the  jury  thought  it  was 
substantial  in  the  main,  though  not 
quite  so  complete  as  it  might  be  under 
the  contract,  and  could  be  made  good 
at  a  reasonable  rate,  the  proper  course 
would  be  to  find  a  verdict  for  the  plain- 
tift",  deducting  such  sum  as  would  ena- 
ble the  defendant  to  do  what  was  requi- 
site. This  question  frequently  arises 
on  special  contracts  to  do  certain  work, 
according  to  certain  plans,  or  certain 
specifications,  and  the  contract  is  not 
strictly  complied  with.  Here  is  a  par- 
tial failure  of  consideration,  and  the 
plaintiff,  in  seeking  to  recover  for  the 
labor  and  materials  expended,  will  !)e 
compelled  to  deduct  for  his  partial  fail- 
ure, and  the  defendant  may  rely  ujion 
this  in  reduction  of  damages,  and  is  not 
driven  to  his  cross  action.  Chapel  v. 
Hickes,  2  C.  &  M.  214.  And  in  such 
case  the  plaintiff  is  not  entitled  to  the 
actual  value  of  the  work,  per  se,  but 
only  the  agreed  price  minus  such  a  sum 
as  would  complete  the  work  according 


CH.   I.] 


CONSIDERATION. 


^388 


better  rule  can  be  given,  than  that  if  the  thing  to  be  done  be 
in  its  own  nature  separable  and  divisible,  and  there  be  no 
express  stipulation  or  necessary  implication  which  makes  it 
absolutely  one  thing,  and  that  part  which  fails  may  be  re- 
garded, to  use  the  language  of  the  court  in  one  case,  "  not 
as  a  condition  going  to  the  essence  of  the  contract,"  [l)  in 
*such  case  the  failure  does  not  destroy  the  rights  growing 
out  of  the  performance  of  the  residue.  But  the  other  party 
may  have  his  claim  or  action  for  damages  arising  from  such 
failure,  (ni) 


to  the  contract.  Thornton  v.  Place,  1  M. 
&  E.  218.  In  the  case  of  Ellis  v.  Ham- 
lin, 3  Taunt.  53,  it  was  held  that  if  a 
builder  undertakes  a  work  of  specified 
dimensions  and  materials,  and  deviates 
from  the  specification,  he  cannot  recover, 
upon  a  cjuantum  valebant,  for  the  work, 
labor,  and  materials. 

(l)  Lucas  V.  Godwin,  3  Bing.  N.  C. 
746,  Bosanquet,  J.  In  that  case,  the 
plaintiff  contracted  to  build  cottages  by 
the  10th  of  October;  they  were  not 
finished  till  the  15th.  Defendant  hav- 
ing accepted  the  cottages,  it  was  held 
that  plaintiff"  might  recover  tlie  value 
of  his  work,  on  a  declaration  for  work 
and  labor  and  materials.  —  The  former 
practice  of  compelling  a  party  to  paj"- 
the  full  sum  for  specified  labor,  and 
then  driving  him  to  his  cross  action  if 
the  work  was  not  done  according  to 
contract,  was  alluded  to  by  Parke,  B., 
in  Mondel  v.  Steel,  8  M.  &  W.  870.  In 
that  case  it  was  held,  after  mature  con- 
sideration, that  in  all  actions  for  goods 
sold  and  delivered  with  a  warranty,  or 
for  work  and  labor,  as  well  as  in  actions 
for  goods  agreed  to  be  sujiplicd  accord- 
ing to  a  contract,  it  is  competent  for 
the  defendant  to  show  how  much  less 
the  subject-matter  of  the  action  was 
worth  by  reason  of  the  breacli  of  the 
contract ;  and  to  the  extent  that  he  ob- 
tains, or  is  capable  of  obtaining,  an 
abatement  of  price  on  that  account,  he 
must  be  considered  as  having  received 
satisfaction  for  tlie  breach  of  contract ; 
and  he  is  precluded  from  recovering  in 
another  action  to  tliat  extent,  but  no 
more.  Sec  also  Chapel  v.  Hickes,  2  C. 
&  M.  214.  So  in  Allen  v.  Cameron,  3 
Tyrwh.  907,  where  the  plaintilf  con- 
tracted to  sell  and  plant  trees  on  tlic 
defendant's  land,  and  also  to  keep  them 

34* 


in  order  for  two  years  next  after  the 
planting,  it  was  held,  that  evidence  of 
non-performance  by  the  plaintiff"  of  any 
part  of  his  contract,  by  which  the  trees 
had  become  of  less  value  to  the  defend- 
ant, was  admissible  to  reduce  the  dam- 
ages in  an  action  on  the  agreement  for 
their  price,  and  for  planting  them.  — 
Lord  Ellenboroitrjh  seems  to  have  laid 
down  the  just  rule  on  this  subject,  in 
Farnsworth  v.  Garrard,  1  Camp.  38. 
It  was  there  held,  that  where  the  plain- 
tiff" declares  on  a  c/uan(um  meruit  for 
work  and  labor  done  and  materials 
found,  the  defendant  may  reduce  the 
damages,  by  showing  that  the  work  was 
improperly  done ;  and  may  entitle  him- 
self to  a  verdict  by  showing  that  it  was 
wholly  inadequate  to  answer  the  pur- 
pose for  which  it  was  undertaken  to  be 
performed. 

(m)  Although  it  was  formerly  held 
that  the  only  remedy  was  by  cross 
action,  Tye  v.  Gwynne,  2  Camp.  346  ; 
IMoggridge  v.  Jones,  3  Camp.  38,  yet 
the  party  may  now  resort  to  the  cross 
action  or  not,  at  his  election.  This  sub- 
ject was  examined  with  much  ability 
and  at  great  length  by  Dewcij,  J.,  in 
Harrington  v.  Stratton,  22  Pick.  510, 
where  it  was  held  that  in  an  action  by 
the  payee  against  the  maker  of  a  pro- 
mi^ssory  note  given  for  the  price  of  a 
chattel,  it  is  competent  for  the  maker 
to  prove,  in  redaction  of  damages,  tliat 
the  sale  was  eff"ected  by  means  of  false 
representations  of  the  value  of  tlio  chat- 
tel, on  the  part  of  the  payee,  although 
the  chattel  has  not  been  returned  or 
tendered  to  him.  And  the  learned 
judge  in  the  course  of  his  opinion, 
said:  —  '•  The  strong  argument  for  the 
adniiisiou  of  such  evidence  in  reduction 
of  damages  in  cases  like  the  present  is, 

[401] 


389* 


THE  LAW   OF   CONTRACTS. 


[book   II. 


SECTION  XV. 

RIGHTS   OF  A   STRANGER  TO   THE   CONSIDERATION. 

In  some  cases,  in  which  the  consideration  did  not  pass 
directly  from  a  plaintiff,  and  the  promise  was  not  made 
directly  to  him,  it  has  been  made  a  question  how  far  he 
*  might  avail  himself  of  it,  and  bring  an  action  in  his  own 
name,  instead  of  the  name  of  the  party  from  whom  the  con- 
sideration moved,  and  to  whom  the  promise  was  made.  It 
seems  to  have  been  anciently  held  («)  as  a  rule  of  law,  (though 
not  universally  so,)  (o)  that  no  stranger  to  the  consideration 
of  an  agreement  could  have  an  action  on  such  agreement, 
although  it  were  made  expressly  for  his  benefit ;  and  this 
rule  has  been  recognized  and  enforced  in  modern  times.  (/>) 
But  it  is  certain  that  if  the  actual  promisee  is  merely  the 
agent  of  the  party  to  be  benefited,  that  party  may  sue  upon 


that  it  will  avoid  circuity  of  action.     It 
is  always  desirable  to  prevent  a  cross 
action  where  full  and  complete  justice 
can  be  done  to  the  parties  in  a  single 
suit ;  and  it  is  upon  this  ground  that  the 
courts  have  of  late  been  disposed  to  ex- 
tend to  the  greatest  length,  compatible 
with  the  legal  riglits  of  the  parties,  the 
principle  of  allowing  evidence   in   de- 
fence or  in  reduction  of  damages,  to  be 
introduced,  rather  than  to  compel  the 
defendant  to  resort  to  his  cross  action. 
As  it  seems  to  us,  the  same  purpose 
will  be  further  advanced,  and  with  no 
additional  evils,  by  adopting  a  rule  on 
this  subject  equally  liroad  in  its  appli- 
cation to  cases  of  actions  on  promissory 
notes,   between  the  original  parties  to 
the  same,  as  to  actions  on  the  original 
contract  of  sale,  and  holding  that,'  in 
either  case,  evidence  of  false  representa- 
tions as  to  the  quality  or  character  of 
the  article  sold,  may  be  given  in  evi- 
dence to  reduce  the  damages,  although 
tlie  article  has  not  been  returned  to  the 
vendor."'  —  See  also  Mixer  v.  Coburn, 
11  Met.  559  ;  Perley  v.  Balch,  23  Pick. 
286  ;  Hammat  v.  Emerson,  27   Maine, 
SOS  ;  Coburn  v.  Ware,  30  Maine,  202 ; 
Spalding  r.  Vandercook,  2  Wend.  431. 
The   cases  of  Scuddcr  r.  Andrews,  2 

[402] 


McLean,  464;  Pulsifer  v.  Hotchkiss, 
12  Conn.  234,  and  some  otliers  seem, 
however,  not  in  accordance  with  this 
principle. 

(n)  Crow  r.  Rogers,  1  Str.  592 ; 
Bourne  v.  Mason,  i  Vent.  6,  2  Keb. 
457 ;  Bull.  N.  P.  134.  And  iu  the  late 
case  of  Jones  v.  Ilobinson,  1  Excli.456, 
Pfl?-/;(?,  B.,  says  :  —  ''It  is  true  that  no 
stranger  to  the  consideration  can  sue." 

(o)  Dutton  V.  Poole,  1  Vent.  318, 
332,  T.  Jones,' 103,  2  Lev.  210. 

(p)  Price  V.  Easton,  4  B.  &  Ad.  433, 
1  Nev.  &  Mann.  303.  In  this  case  the 
declaration  stated  that  W.  P.  owed  the 
plaintitF£13,  and  that  in  consideration 
thereof,  and  that  W.  P.,  at  the  defend- 
ant's request,  had  promised  defendant 
to  work  for  him  at  certain  wages,  and 
also,  in  consideration  of  W.  P.  leaving 
the  amount  which  might  be  earned  by 
him  in  the  defendant's  hands,  he,  the 
defendant,  undertook  and  promised  to 
pay  the  plaintiff  the  said  sum  of  .£13. 
Averment,  that  W.  P.  performed  his 
part  of  the  agreement.  Judgment  ar- 
rested, because  tlie  plaintiff  was  a  stran- 
ger to  the  consideration.  And  Little- 
dale,  J.,  said :  —  "  This  case  is  precisely 
like  Crow  v.  Rogers,  and  must  be  go- 
verned by  it." 


CH.   I.] 


CONSIDERATION. 


'390 


the  promise,  whether  his  relation  to  and  interest  in  the  agree- 
ment were  known  or  not.  {q)  This,  however,  rests  upon 
the  ground  that  the  consideration  actually  moves  from  such 
party,  and  that  he  cannot  be  regarded  as  a  stranger  to  it. 
But  it  seems  to  be  held  in  some  recent  cases  that,  while  the 
rule  itself  is  not  denied,  it  would  generally  be  held  inappli- 
cable where  the  beneficiary  has  any  concern  whatever  in  the 
transaction,  (r)  In  some  cases,  the  actual  promisee  would 
*  be  considered  only  the  agent  of  the  beneficiary,  and  in  others 
the  beneficiary  would  be  regarded  as  the  trustee  of  the  party 
to  whom  the  promise  was  directly  made,  and,  as  such  trustee, 
might  maintain  an  action  in  his  own  name,  [s]  In  this 
country,  the  right  of  a  third  party  to  bring  an  action  on  a 
promise  made  to  another  for  his  benefit  seems  to  be  some- 
what more  positively  asserted ;  [t)  and  perhaps  it  would  be 
safe  to  consider  this  a  prevailing  rule  with  us. 


[q]  As  in  the  familial*  instance  of 
principals  suing  for  goods  sold  by  their 
factors,  who  may  be  supposed  perhaps 
to  have  been  the  principals,  and  to  whom 
alone  the  promise  was  made.  Horn- 
by V.  Lacy,  6  M.  &  S.  166  ;  Coppin  v. 
Craig,  7  Taunt.  243  ;  Morris  v.  Clcas- 
by,  1  ]\r.  &  S.  576. 

(r)  Thus,  in  the  recent  case  of  Lilly 
V.  Hays,  1  Nev.  &  Perry,  20,  5  Ad.  & 
EI.  550,  where  it  was  keld  that  if  A.  re- 
mits money  to  B.  to  pay  C,  and  B.  pro- 
mises C.  to  pay  it  to  him,  C.  can  main- 
tain an  action  against  B.  for  money  had 
and  received.  And  Patteson,  J.,  there 
said  : — "  The  only  question  in  this  case 
is,  whether  there  is  a  consideration  mov- 
ing from  the  plaintiff.  It  is  said  that 
such  is  the  rule  of  law  hitherto  adhered 
to  ;  and  to  that  I  agree.  But  in  an  ac- 
tion for  money  had  and  received  there 
seldom  is  a  direct  consideration  moving 
from  the  plaintiff.  Suppose  the  case  of 
money  sent  to  a  general  agent,  who  had 
promised  to  pay  over  the  money  sent  to 
him,  —  in  an  action  against  him  by  the 
person  for  wliose  use  this  money  was 
sent,  would  it  be  any  answer  for  him  to 
say,  that  the  consideration  did  not  move 
from  the  plaintiff  ?  Again,  —  Suppose 
money  is  sent  to  a  banker  for  the  pay- 
ment of  certain  debts, —does  not  the 
consideration  indirectly  move  from  the 
creditor  whose  particular  debt  is  to  be 
paid  by  the  debtors  sending  the  money'? 


The  debtor  may  be  considered  as  the 
agent  of  the  creditor,  and  the  money 
paid  indirectly  to  the  banker  by  the 
latter.  So  here,  the  defendant,  though 
not  the  general  agent,  became  the  agent 
of  Wood,  in  tliis  transaction ;  therefore 
the  consideration  did  move  from  the 
plaintiff,  through  the  instrumentality  of 
Wood." — See  also  Jones  i'.  Kobinson, 
1  Exch.  454  ;  Thomas  v.  Thomas,  2  Q. 

B.  851  ;  Hinkley  v.  Powler,  15  JIaine, 
283  ;  Carnegie  v.  Morrison,  2  Met.  401. 

(s)  In  Pigott  V.  Thompson,  3  B.  & 
P.  149,  Lord  Alvanley  is  reported  to 
have  said: — "It  is  not  necessary  to  dis- 
cuss whether  if  A.  let  land  to  B.,  in 
consideration  of  which  the  latter  pro- 
mises to  pay  the  rent  to  C,  his  execu- 
tors and  administrators,  C.  may  main- 
tain an  action  on  that  promise.  I  have 
little  doubt,  however,  that  the  action 
miglit  be  maintained,  and  that  the  con- 
sideration would  be  sufiicient ;  though 
my  brothers  seem  to  think  differently 
on  this  point.     It  appears  to  me  tlnit 

C.  would  be  only  a  trustee  for  A.,  who 
miglit  for  some  reason  be  desirous  that 
the  money  should  be  paid  into  tlie  hands 
of  C.  In  case  of  marriage,  it  is  often 
necessary  to  make  contracts  in  this  man- 
ner, and  the  personal  action  is  given  to 
the  trustees  for  the  benefit  of  the  feme 
covert." 

(<)  See  22  Am.  Jur.  16-20;  Hind  v. 
Holdship,  2  Watts,  104;  Arnold  v.  Ly- 

[403] 


391*  THE   LAW   OF   CONTRACTS.  [BOOK   II. 

But  where  the  promise  is  made  under  seal,  and  the  action 
must  be  debt  or  covenant,  then  it  must  be  brought  in  the 
name  of  the  party  to  the  instrument,  and  a  third  party  for 
whose  benefit  the  promise  is  made  cannot  sue  upon  it.  (w) 


SECTION  XVI. 
THE   TIME   OF   THE   CONSIDERATION. 

Considerations  may  be  of  the  past,  of  the  present,  or  of  the 
future.  When  the  consideration  and  the  promise  founded 
*upon  it  are  simultaneous,  then  the  consideration  is  of  the 
present  time;  the  whole  agreement  is  completed  at  once, 
and  the  consideration  and  the  promise  are  concurrent. 
When  the  consideration  is  to  do  a  thing  hereafter,  it  is  said 
to  be  executory ;  when  the  promise  to  do  this  is  accepted, 
and  a  promise  in  return  founded  upon  it,  this  latter  promise 
rests  on  a  sufficient  foundation,  and  is  obligatory.  When 
the  consideration  is  wholly  past,  it  is  said  to  be  executed  ; 
and  in  relation  to  considerations  of  this  kind  many  nice 
questions  have  arisen. 

It  may  be  stated,  as  the  general  rule,  that  a  past  or  exe- 
cuted consideration  is  not  sufficient  to  sustain  a  promise 
founded  upon  it,  unless  there  was  a  request  for  the  consider- 
ation previous  to  its  being  done  or  made.  This  request 
should  be  alleged  in  a  declaration  which  sets  forth  an  exe- 
cuted consideration  as  that  on  which  is  founded  the  promise 
that  is  sought  to  be  enforced.  Without  such  previous  re- 
quest a  subsequent  promise  has  no  force ;  because  the  con- 
man,  17  Mass.  400;  Bridge  v.  Niagara  promise  to  three,  upon  a  consideration 
Ins.  Co.  1  Hall,  247  ;  Jackson  v.  Mayo,  moving  from  them  and  a  fourth  person, 
11  Mass.  152,  n.  a;  Hinkley  v.  Fowler,  will  support  an  action  by  the  three. 
15  Maine,  285;  Hall  u.  Marston,  17  Cabot  r.  Haskins,  3  Pick.  S3.  See  also 
Mass.  575;  Felton  v.  Dickinson,  10  Farrow  v.  Turner,  2  A.  Iv.  Marsh.  496  ; 
Mass.  287.  This  question  was  fully  Crocker  v.  Higgins,  7  Conn.  347 ;  Mil- 
e.xamined  in  the  late  case  of  Carnegie  ler  v.  Drake,  1  Caines,  45.  See  also 
V.  Morrison,  2  IMet.  381,  by  Shaw,  C.  J.,  Bigelow  v.  Davis,  16  Barb.  561. 
the  old  case  of  Dutton  I'.  Foolc,  1  Vent.  (m)  Lord  Southampton  v.  Brown,  G 
318,  being  adopted  as  good  law,  and  in  B.  &  C.  718;  Offly  v.  Ward,  1  Lev. 
Brewer  v.  ])yer,  7  Cush.  337,  the  same  235;  Sanders  v.  Filley,  12  Pick.  554; 
doctrine  is  reaffirmed. — In  like  manner  Johnson  z,'.i"oster,  12  Met.  167  ;  Hink- 
the  American  courts  have  held  that  a  ley  v.  Fowler,  15  Maine,  285. 
[404] 


CH.   I.]  CONSIDERATION.  *  392 

sideration  being  entirely  completed  and  exhausted,  it  cannot 
be  considered  that  it  would  not  have  been  made  or  given, 
but  for  a  promise  which  is  subsequent  and  independent.  A 
familiar  illustration  is  afforded  by  the  case  of  a  guarantor. 
If  one  lends  money  to  another,  and  at  a  subsequent  time  a 
third  party,  who  did  not  request  the  loan,  and  is  not  benefited 
by  it,  promises  to  see  that  it  is  repaid,  such  promise  is  void, 
because  no  consideration  passes  from  the  promisee  to  the 
promisor.  But  if  the  promisor  requests  the  loan,  or  if  hit? 
promise  is  made  previous  to  the  loan,  or  at  the  same  time, 
then  it  will  be  supposed  that  the  loan  is  made  because  of  the 
promise.  It  will  also  be  supposed  that  the  promisor  is  bene- 
fited by  the  loan  because  he  requests  it,  or,  at  least,  that  the 
lender  parts  with  his  money  in  consequence  of  the  promise, 
and  this  is  a  detriment  to  him,  which  is  equally  good  by  way 
of  a  consideration. 

But  this  previous  request  need  not  always  be  express,  or 
proved,  because  it  is  often  implied.  As,  in  the  first  place, 
where  one  accepts  or  retains  the  beneficial  result  of  such 
voluntary  service.  Here,  the  law  generally  implies  both  a 
previous  request  and  a  subsequent  promise  of  repayment. 
*  No  one  can  compel  another  to  accept  a  gratuitous  and  un- 
requested  service ;  no  one  can  make  himself  the  creditor  of 
another,  without  his  consent,  or  against  his  will.  But  if 
that  other  chooses  to  accept  such  service,  or  the  service 
being  rendered  voluntarily,  retains  all  the  benefit  thereof  to 
himself,  this  puts  the  service  on  the  same  footing,  in  the  law, 
as  one  rendered  at  request,  and  for  which  a  promise  is  made. 
The  cases  where  goods  are  supplied  to  an  infant,  and  the 
father  is  held  responsible,  often  fall  within  this  rule,  (v) 

(v)  Thus  in  Law  v.  Willdn,  G  Ad.  &  he  concealed  them.  My  brother  StorJcs 
El.  718,  Avhich  was  an  action  against  a  admits  that,  if  the  father  had  seen  tiiem, 
fatiicr  for  goods  supplied  his  minor  son,  an  implied  authority  would  be  shown." 
who  was  away  at  school.  The  only  So  in  the  Fishmonger's  Co.  r.  Kobcrt- 
cvidence  to  charge  the  father  was,  tha"t  son,  5  M.  &  G.  192,  TindaL  C.  J.,  said 
the^  boy,  when  he  went  home  for  the  if  persons  receive  a  benefit  from  a  con- 
holidays,  took  the  clothes  with  him,  but  tract  on  which  they  would  not  be  ori- 
was  not  wearing  them  ;  and  that  he  re-  ginally  bound,  this  would  bind  tliem, 
turned  to  school  with  them.  Colerid/je,  and  render  them  liable  for  the  fulfilment 
J.,  said:  —  "The  defendant's  son  was  of  the  contract.  Doe  v.  Tanicrc,  13 
sent  to  schoolin  want  of  clothes.  When  Jur.  119.  So  where  one  built  a  school- 
they  were  supplied,  and  he  went  home  house  under  a  contract  with  persons 
with  them,  we  are  not  to  assume  that  assuming  to  act  as  a  district  committee, 

[405] 


THE   LAW   OF   CONTRACTS. 


[book  II. 


And,  in  the  second  place,  where  one  is  compelled  to  do  for 
another  what  that  other  should  do,  and  was  compellable  to 
do.  Here  also  the  law  implies  not  only  a  previous  request 
that  the  thing  should  be  done,  but  also  a  promise  to  compen- 
sate for  the  doing  of  it.  (iv)  As  where  one  is  surety  for  an- 
*  other,  and  pays  the  debt  which  the  other  owes.  Here  the 
surety  can  recover  what  he  pays,  without  proving  that  the 
principal  debtor  either  requested  him  to  pay  the  money,  or 
promised  to  repay  him  ;  for  the  law  implies  all  this.  In  re- 
ceiving him   as  surety,  or  in  requesting  him  to  become  his 


but  who  had  in  fact  no  authority,  yet 
fi  district  school  was  afterwards  kept  in 
it  by  direction  of  the  authorized  school 
agent,  this  was  held  to  be  an  acceptance 
of  the  house  by  the  district,  and  they 
were  held  liable  to  pay  the  reasonable 
value  of  the  building.  Abbot  v.  Her- 
mon,  7  Greenl.  (Bennett's  Ed.)  118,  and 
note.  Sec  also  Roberts  v.  Morston,  20 
Maine,  275  ;  Hayden  v.  Madison,  7 
Greenl.  76  ;  Weston  v.  Davis,  24  ]\Iaine, 
374;  Hatch  v.  Purcell,  1  Foster,  544; 
Newell  r.  Hill,  2  Mete.  180.  So  if  a 
conveyance  of  au  interest  in  land  be 
made  in  the  common  form  of  a  quit- 
claim deed,  containing  this  stipulation, 

—  "  provided  said  grantee  shall  pay  said 
grantor  or  his  assigns,  twenty-two  dol- 
lars annually  from  this  date  on  demand" 

—  until  the  happening  of  a  certain 
event ;  and  the  grantee  holds  under  the 
deed,  but  fails  to  make  the  annual  pay- 
ments when  demanded ;  the  grantor 
may  sustain  an  action  of  assumpsit 
against  the  grantee,  to  recover  the 
money.  Huff  v.  Nickerson,  27  Maine, 
106.  — But  if  one  build  a  house  for  his 
own  convenience  on  the  land  of  another, 
by  his  permission,  there  is  no  implied 
agreement  on  the  part  of  the  owner  of 
the  land  to  pay  the  value  of  such  house. 
Wells  V.  Banister,  4  Mass.  514.  Neither 
can  a  school  district  be  held  liable  for 
unauthorized  repairs  upon  their  school- 
house,  from  the  fact  tliat  they  aftcnvards 
used  the  bouse  ;  for  tiiis  acceptance  and 
holding  of  the  repairs  cannot  be  con- 
sidered as  voluntary,  Ijccause  the  house 
could  not  well  be  used  without  making 
use  of  the  repairs.  Davis  r.  Bradford, 
24  Maine,  349.  —  So  the  law  will  not 
imply  a  promise  on  the  part  of  a  pauper 
to  pay  from  his  estate  moneys  expend- 
ed by  the  town  of  his  settlement  for  his 
support.      Charlestown  v.  Hubbard,  9 

[406] 


New  Hamp.  195;  Deer  Isle  v.  Eaton, 
12  Mass.  328. 

(w)  Jefferys  v.  Gurr,  2  B.  &  Ad.  833  ; 
Pownal  V.  Ferrand,  6  B.  &  C.  439.  In 
this  case  the  indorser  of  a  bill,  being 
sued  by  the  holder,  paid  liim  part  of  the 
sum  mentioned  in  tiie  bill ;  and  it  was 
held  that  he  might  recover  the  same  from 
the  acceptor  in  an  action  for  money 
paid  to  his  use.  And  Ba;/lci/,  J.,  said  : 
—  "  The  law  is  that  a  party,  by  volun- 
tarily paying  the  debt  of  another,  does 
not  acquire  any  right  of  action  against 
that  other ;  but  if  I  paj'  your  dcl)t  be- 
cause I  am  forced  to  do  so,  then  I  may 
recover  the  same ;  for  the  law  raises  a 
promise  on  the  part  of  the  person  whose 
debt  I  pay,  to  reimburse  me.  That 
principle  was  fully  established  in  the 
case  of  Exall  v.  Partridge,  8  T.  R. 
308." — Grissell  v.  Robinson,  3  Bing. 
N.  C.  10.  In  this  case  the  plaintiffs, 
having  agreed  with  the  defendant  to 
give  him  a  lease  of  certain  premises, 
caused  their  attorney  to  prepare  the 
lease,  and  paid  him  for  it ;  and  after- 
wards brought  their  action  against  the 
defendant  to  recover  the  amount  so 
paid,  and  declared  in  assumpsit  for 
money  paid  by  them  for  tlie  defendant's 
use.  It  was  held  that  they  were  enti- 
tled to  recover,  the  evidence  showing 
that  it  was  the  custom  for  the  landlord's 
attorney  to  draw  the  lease,  and  for  the 
lessee  to  pay  for  it.  Pari;  J.,  said  :  — 
"As  the  plaintiffs  were  liable  to  their 
own  attorney  in  the  first  instance,  and 
all  the  evidence  shows  that,  according 
to  the  custom,  the  defendant  is  ultimate- 
ly bound  to  pay  for  tlie  lease,  he  must 
be  taken  to  have  impliedly  assented  to 
the  payment  made  b}'  the  plaintiffs,  and 
the  action  lies  for  money  paid  to  his 
use."  See  also  Davies  v.  Humphreys, 
6  M.  &  W.  153. 


CH.  I.] 


CONSIDERATION. 


394 


surety,  he  will  be  considered  as  having  requested  him  to  pay 
the  debt ;  and  if  such  request  to  pay  the  debt  were  express, 
the  general  principles  of  law  would  imply  the  promise  of  re- 
payment. The  compulsion  in  this  case  must  be  a  legal  one; 
or,  in  other  words,  there  must  be  an  obligation  which  the  law 
will  enforce,  (x) 

*And,  in  the  third  place,  where  one  does  voluntarily,  and 
without  request,  that  which  he  is  not  compellable  to  do,  for 
another  who  is  compellable  to  do  it.  As  if  one  who  is  not 
surety,  nor  bound  in  any  way,  pays  a  debt  due  from  another. 
He  has  not  the  same  claim  and  right  as  if  he  had  been 
compellable  to  pay  this  debt.  For  now  the  law,  if  there 
be  a  subsequent  promise  to  repay  the  money,  will  indeed 
imply  the  previous  request,  as,  if  there  had  been  a  previous 
request,  it  would  have  implied  a  subsequent  promise  ;  but 
it  will  not  imply  both  the  promise  and  the  request,  as  in  the 
former  case,  (y)     The  reason  is,  that  the  debtor  shall   not 


(.r)  Pitt  V.  Purssord,  S  M.  &  W.  538. 
In  this  case  one  of  two  persons,  who,  as 
sureties  for  a  third,  signed  together  with 
the  principal  a  joint  and  several  pro- 
missory note,  on  the  note  becoming  due, 
paid  the  amount,  though  no  demand 
had  been  made  or  action  brought  against 
him  by  the  holder.  It  was  held  that  such 
payment  could  not  be  considered  volun- 
tary, and  that  he  might  sue  his  cosure- 
ty for  contribution.  And  A/derson,  B., 
said:  —  "This  is  not  a  voluntary  pay- 
ment, nor  is  it  lilce  the  case  where  one 
is  liable  as  principal  and  another  as 
surety.  Here  the  sureties  are  not  liable 
in  default  of  the  principal ;  they  are  all 
primarily  liable,  and  are  ail  equally  so. 
This  was  not  a  payment  made  volunta- 
rily, but  was  a  payment  in  discharge  of 
a  debt  due  on  an  instrument  on  which 
the  defendant  was  liable." 

(!/)  Wing  V.  Mill,  I  B.  &  Aid.  104. 
In  this  case  a  pauper,  residing  in  the 
parish  of  A.,  received,  during  illness,  a 
weekly  allowance  from  the  parish  of  B., 
where  he  was  settled.  Held,  that  an 
apothecary,  who  had  attended  the  pau- 
per, might  maintain  an  action  for  the 
amount  of  his  bill  against  the  overseer 
of  B.,  who  expressly  promised  to  pay 
the  same.  —  But  without  such  express 
promise,  such  action,  it  seems,  could 
not  be  maintained.  Paynter  v.  Wil- 
liams, 1  Cr.  &  M.  819.     In  this  case  a 


pauper,  whose  settlement  was  in  the 
parish  of  A.,  resided  in  the  parish  of 
B.,  and  whilst  there  received  relief  from 
the  parish  of  A.,  which  relief  was  after- 
wards discontinued,  the  overseers  ob- 
jecting to  pay  any  more  unless  the  pau- 
per moved  into  his  own  parish.  The 
pauper  was  subsequently  taken  ill  and 
attended  by  an  apothecary,  who,  after 
attending  him  nine  weeks,  sent  a  letter 
to  the  overseers  of  A.,  upon  the  receipt 
of  which  the}-  directed  the  allowance  to 
be  renewed,  and  it  was  continued  to  the 
time  of  the  pauper's  decease.  Held, 
that  the  overseers  of  A.  were  liable  to 
pay  so  much  of  the  apothecary's  bill  as 
was  incurred  after  the  letter  was  receiv- 
ed. And  Bai/lci/,  B.,  said :  —  "I  am  of 
opinion  that  the  parish  is  liable,  and 
that  the  plaintiff  can  maintain  the  pre- 
sent action.  The  legal  liability  is  not 
alone  sufficient  to  enable  the  party  to 
maintain  the  action,  without  a  retainer 
or  adoption  of  the  plaintiff  on  the  part 
of  the  parish.  The  legal  liability  of  the 
parish  does  not  give  any  one  who  chooses 
to  attend  a  pauper  and  supply  liirawith 
medicines  a  right  to  call  on  them  for 
payment.  It  is  their  duty  to  sec  tliat  a 
proper  person  is  employed,  and  they  arc 
to  have  an  option  who  the  medical  man 
shall  be.  Wing  r.  Mill  docs  not  go  the 
length  of  saying  that  a  mere  legal  lia- 
bility is  enough ;  there  must  be  a  re- 
[407] 


395 


THE   LAW   OF   CONTRACTS. 


[book  ir. 


be  obliged  to  accept  another  party  as  his  creditor  without  his 
consent.  He  owes  some  one  ;  and  he  nnay  have  partial  de- 
fences, or  other  reasons  for  wishing  to  arrange  the  debt  with 
him  and  not  another ;  and  if  another  comes  in  without 
request  or  necessity  and  pays  the  debt,  the  debtor  is  not  ob- 
liged to  substitute  him  in  the  place  of  his  original  creditor 
^unless  he  chooses  to  do  it.  But  he  may  do  this  if  he  so 
wishes  ;  and  if,  after  the  debt  is  paid  by  this  third  party,  the 
debtor  choose  to  promise  him  repayment,  he  is  held  to  such 
promise,  and  the  consideration,  although  executed,  is  suffi- 
cient, for  the  law  implies  a  previous  request ;  or,  what  is  the 
same  thing,  will  not  permit  the  debtor  to  deny  the  allegation 
of  such  request  in  the  declaration. 

It  is,  however,  to  be  observed,  that  where  the  law  implies 
both  the  previous  request  and  also  a  subsequent  promise, 
there  no  other  promise  than  that  which  is  so  implied  can  be 
enforced,  if  the  consideration  for  the  promise  be  an  executed 
one.  (c)      In  other  words,  no  express  promise  made  after  a 


tainer  or  adoption.  In  that  case  the 
parish  officers  were  aware  of  the  attend- 
ance, and  sanctioned  it,  because  tlicy 
applied  to  him  to  send  in  his  bill."  See 
further,  Dotv  v.  Wilson,  14  Johns.  378  ; 
Gleason  r.  "Dyke,  22  Pick.  393 :  Dear- 
born V.  Bowman,  3  Mete.  155. 

{z)  Kaye  y.'  Dutton,  7  M.  &  G.  807. 
This  was  an  action  of  assumpsit  upon 
an  agreement,  whereby,  after  reciting 
that  one  W.  in  his  lifetime  mortgaged 
certain  premises  to  K.  &  B.  to  secure 
.£3,500  ;  tluit  K.  and  B.  required  W.  to 
procure  the  plaintiff  to  join  him  in  a 
bond,  as  a  collateral  security  for  that 
sum  and  interest;  that  the  defendant 
had,  since  the  death  of  W.,  taken  upon 
himself  the  management  of  the  estate  of 
W.,  and  hail  paid  to  11.  and  B.  £3,370  ; 
that  the  plaintiff  had  been  called  upon 
as  surety,  and  had  paid  to  11.  and  B. 
£130;  that  the  defendant  had  repaid 
him  .£48,  leaving  £82  due ;  that  tlie 
defendant  had  agreed  to  repay  the  plain- 
tiff the  .£82  out  of  the  moneys  which 
miglU  arise  from  the  sale  of  the  mort- 
"•a'^ed  premises,  and  in  the  mean  time 
to  "approjiriate  the  rents  towards  pay- 
ment of  the  same,  as  the  plaintitf  had  a 
lien  upon  tiie  premises  for  the  same ; 
that  the  defendant  had  requested  the 
plaintiff  to  release  and  convey  all  his 

[408] 


estate  and  interest  in  the  premises  to  A. 
and  L  ,  and  that  that  he  had  already  done, 
reserving  to  himself'  a  lien  on  the  said  pro- 
pertij,  —  it  was  witnessed  that,  in  con- 
sideration of  the  plaintiff's  having  paid 
the  £130  to  R.  &  B.  in  part  discharge 
of  the  mortgage,  and  in  consideration  of 
liis  having  released  and  conveyed  all 
his  estate  and  interest  in  the  premises 
to  A.  &  L.,  and  in  order  to  secure  to 
the  plaintiff  the  repayment  of  the  .£82, 
the  defendant  undertook  and  agreed 
with  the  plaintiff'  to  pay  him  the  same, 
with  interest,  out  of  the  proceeds  of  the 
premises  when  sold,  and,  in  the  mean 
time,  to  appropriate  the  rents  in  liqui- 
dation of  tiie  same.  The  declaration 
then  stated  that,  in  consideration  of  the 
premises,  the  defendant  promised  the 
plaintiff  to  perform  the  agreement ;  and 
alleged  for  breach,  that,  altiiough  the 
defendant  had  received  rents  to  a  suffi- 
cient amount,  he  liad  failed  to  pay. 
Held,  that,  inasmuch  as  the  declaration 
did  not  show  that  the  plaintiff  had  any 
interest  in  the  premises,  except  that 
which  he  reserved,  his  release  and  con- 
vej-ance,  thougli  executed  at  the  defend- 
ant's rcfjuest,  formed  no  legal  consider- 
ation for  the  promise  alleged  to  have 
been  made  by  the  latter.  And  Tindal, 
C.  J.,  in  that  case  said :  —  "  Two  objec- 


OH.  I.] 


CONSIDERATION. 


396 


consideration  has  been  wholly  executed,  and  founded  wholly 
upon  that  consideration,  can  be  enforced,  if  it  differs  from  the 
promise  which  the  law  implies.  Otherwise,  there  would  be 
two  distinct  and  perhaps  antagonistic  promises  resting  upon 
one  consideration.  From  what  has  been  said  it  will  be  seen 
that,  where  the  consideration  is  wholly  executed,  the  law  im- 
plies in  some  cases  a  previous  request,  provided  a  promise  be 
proved  ;  but  will  not  imply  a  request  and  thence  imply  a  pro- 
mise.    On   the  other  hand,  wherever  the  law  implies  the 


tions  were  made  to  the  declaration  — 
fii'St,  that  it  did  not  show  any  consider- 
ation for  the  promise  by  the  defendant ; 
secondly,  that  the  promise  was  hiid  in 
respect  of  an  executed  consideration, 
but  was  not  such  a  promise  as  woukl 
have  been  implied  by  law  from  that 
consideration;  and  that,  in  point  of  law, 
an  executed  consideration  will  support 
no  promise,  although  express,  other 
than  that  which  the  law  itself  would 
have  implied.  The  cases  cited  by  the 
defendant,  viz..  Brown  v.  Crump,  1 
Marsh.  567,  6  Taunt.  300;  Grander  t". 
Collins,  6  M.  &  W.  458  ;  Hopkins  v. 
Logan,  5  M.  &  W.  241  ;  Jackson  v. 
Cobbin,  8  M.  &  W.  790  ;  and  Roscorla 
V.  Thomas,  3  Q.  B.  234, 2  Gale  &  D  508, 
certainly  support  that  proposition  to 
this  extent,  —  that,  where  the  consider- 
ation is  one  from  which  a  promise  is  by 
law  implied,  there  no  express  promise 
made  in  respect  of  that  consicleration 
after  it  has  been  executed,  differing 
from  that  which  by  law  would  be  im- 
plied, can  be  enforced.  But  those  cases 
may  have  proceeded  on  the  principle 
that  the  consideration  was  exhausted  by 
the  promise  implied  bj'  law,  from  the 
very  execution  of  it;  and, consequently, 
any  promise  made  afterwards  must  be 
nudum  pactian,  there  remaining  no  con- 
sideration to  support  it.  But  the  case 
may,  perhaps,  be  different  where  there 
is  a  consideration  from  which  no  pro- 
mise would  be  implied  by  law  ;  that  is, 
where  the  party  suing  has  sustained  a 
detriment  to  himself,  or  conferred  a  be- 
nefit on  the  defendant,  at  his  request,  un- 
der circumstances  which  would  not 
raise  any  implied  promise.  In  such 
cases  it  appears  to  have  been  held,  in 
some  instances,  that  the  act  done  at  the 
request  of  the  party  charged  is  a  suffi- 
cient consideration  to  render  binding  a 
promise  afterwards  made  by  hiip  in  rc- 


VOL.    I. 


35 


spect  of  the  act  so  done.  Hunt  v.  Bate, 
and  several  cases  mentioned  in  the  mar- 
gin of  the  report  of  that  case,  seem  to 
go  to  that  extent;  as  also  do  some  others 
collected  in  RoUe,  Abr.  Action  sur 
Case,  ( Q- ) ''  —  So  in  Jackson  v.  Cobbin, 
8  M.  &  W.  790.  a  declaration  in  assump- 
sit stated,  in  substance,  that  the  defend- 
ant agreed  to  let,  and  the  plaintiff  to 
take,  a  certain  messuage  and  premises 
on  certain  specified  terms,  and  that  af- 
terwards, in  consideration  of  the  premi- 
ses, and  that  the  plaintiff,  at  the  request 
of  the  defendant,  had  promised  the  de- 
fendant to  perform  his  part  of  the  agree- 
ment, the  defendant  promised  the  plain- 
tiff to  perform  his  part  of  the  agree- 
ment, and  that  he  then  had  power  to 
let  the  messuage  and  premises  to  the 
plaintiff,  without  restriction  as  to  the  pur- 
pose Jbr  which  the  same  should  be  used  and 
occupied.  Held,  on  special  demurrer, 
that  such  a  promise  could  not  be  im- 
plied from  the  relation  of  the  parties, 
and  that  the  consideration  alleged  was 
insufficient  to  sustain  it.  See  also  Hop- 
kins V.  Logan,  5  M.  &  W.  241  ;  Latti- 
more  v.  Garrard,  1  Exch.  809.  In  Ros- 
corla V.  Thomas,  3  Q.  B.  235,  the  decla- 
ration stated  that,  in  consideration  that 
plaintiff,  at  the  request  of  defendant, 
had  bought  a  horse  of  defendant  at  a 
certain  price,  defendant  promised  that 
the  horse  was  free  from  vice  ;  but  it  was 
vicious.  Held  bad,  on  motion  in  arrest 
of  judgment ;  for  that  the  executed  con- 
sideration, though  laid  with  a  request, 
neither  raised  by  implication  of  law  the 
promise  charged  in  the  declaration,  nor 
would  support  such  promise,  assuming 
it  (as  must  be  assumed  on  motion  in 
arrest  of  judgment,)  to  be  express.  But 
we  think  this  case  goes  too  far,  in  saying 
a  consideration  which  would  not  raise 
an  implied  promise  would  not  sustain 
an  express  one.     Sec  the  observations 

[409] 


897-398 


THE  LAW   OP  CONTBACTS. 


[book  II. 


promise,  there  it  will  also  imply  a  request ;  and  hence  it 
may  be  said  that  express  request  is  unnecessary  where  the 
law  implies  a  promise,  (a) 


of  Tindal.  C.  J.,   in  Kayc  v.  Button, 
cited  above. 

(a)  It  follows  from  what  is  stated  in 
the  text  that  in  declaring  on  an  execu- 
ted consideration,  it  is  not  necessary  to 
allege  a  precedent  request  where  the 
law  will  imply  a  promise  without  a  re- 
quest. See  Osborne  v.  Rogers,  1  Wms. 
Saund.  264,  n.  1,  as  corrected  by  the 
learned  note  of  Mr.  Sergeant  Manning, 
appended  to  the  case  of  Fisher  v.  Pyne, 
1  Man.  &  Gr.  265.  Accordingly,  in 
Victors  V.  Davies,  12  M.  &  W.  758,  it 
was  held  that  in  a  declaration  for  money 
lent,  it  is  not  necessary  to  aver  that  the 
money  was  lent  at  the  defendant's 
request.  Parke,  B.  "  There  is  a  very 
learned  note  of  my  bi-other  Manning  on 
this  subject,  in  which  he  goes  into  the 
whole  law  with  respect  to  alleging  a  re- 
quest, and  points  out  the  error  into 
which  Mr.  Sergeant  Williams  appears 
to  have  fallen  in  his  comment  upon 
Osborne  v.  Rogers.  The  note  is  thus : 
'  The  consideration  being  executory,  the 
statement  of  the  request  in  the  decla- 
ration, though  mentioned  in  the  under- 
taking, appears  to  have  been  unneces- 
sary. In  Osborne  v.  Rogers  the  con- 
sideration of  a  promise  is  laid  to  be, 
that  the  said  Robert,  at  the  special  in- 
stance and  request  of  the  said  William, 
would  serve  the  said  William,  and  be- 
stow his  care  and  labor  in  and  about  the 
business  of  the  said  William ;  and  the 
declaration  alleges,  that  Robert,  con- 
fiding in  the  said  promise  of  William, 
afterwards  went  into  the  service  of 
William,  and  bestowed  his  care  and 
labor  in  and  about,'  &c.  Here  the  con- 
sideration is  clearly  executory,  yet  Mr. 
Sergeant  Williams,  in  a  note  to  the 
words  'at  the  special  instance  and  re- 
quest,' says,  '  these  words  are  necessary 

[410] 


to  be  laid  in  the  declaration,  in  order 
to  support  the  action.  It  is  held,  that 
a  consideration  executed  and  past, — 
as,  in  the  present  case,  the  service  per- 
formed by  tiie  plaintiff  for  the  testator 
in  his  lifetime,  for  several  years  then 
past,  —  is  not  sufficient  to  maintain  an 
assumpsit,  unless  it  was  moved  by  a 
precedent  request,  and  so  laid.'  The 
statement,  according  to  modern  prac- 
tice, of  the  accrual  of  a  debt  for,  or  the 
making  of  a  promise  for  the  payment 
of,  the  price  of  goods  sold  and  deliver- 
ed, or  for  the  repayment  of  money  lent, 
as  being  in  consideration  of  goods  sold 
and  delivered,  or  money  lent  to  the  de- 
fendant, at  his  request,  is  conceived  to 
be  an  inartificial  mode  of  declaring. 
Even  where  the  consideration  is  entirely 
past,  it  appears  to  be  unnecessary  to 
allege  a  request,  if  the  act  stated  as  the 
consideration  cannot,  from  its  nature, 
have  been  a  gratuitous  kindness,  but 
imports  a  consideration  per  se.  It  be- 
ing immaterial  to  the  right  of  action 
whether  the  bargain,  if  actually  con- 
cluded and  executed,  or  the  loan,  if 
made,  and  the  moneys  actually  ad- 
vanced, was  proposed  and  urged  by  the 
buyer  or  by  the  seller,  by  the  borrower 
or  by  the  lender.  Vide  Rastall's  En- 
tries, tit.  '  Dette ; '  and  Co.  Ent.  tit. 
'  Debt.'  There  cannot  be  a  claim  for 
money  lent  unless  there  be  a  loan,  and 
a  loan  imports  an  obligation  to  pay.  If 
the  money  is  accepted,  it  is  immaterial 
whether  or  not  it  was  asked  for.  The 
same  doctrine  will  not  apply  to  money 
paid ;  because  no  man  can  be  a  debtor 
for  money  paid,  unless  it  was  paid  at 
his  request.  What  my  brother  Man- 
ning says,  in  the  note  to  which  I  have 
referred,  is  perfectly  correct." 


CH.  II.]  ASSENT.  399 


CHAPTER   11. 

ASSENT   OF  THE  PARTIES. 

Sect.  I.  —  What  the  Assent  must  be. 

There  is  no  contract,  unless  the  parties  thereto  assent ; 
and  they  must  assent  to  the  same  thing,  in  the  same  sense,  {b) 
A  mere  assent  does  not  suffice  to  constitute  a  contract,  for 
there  may  be  an  assent  in  a  matter  of  opinion,  or  in  some  fact 
which  is  done  and  completed  at  the  time,  and  therefore  leaves 
no  obligation  behind  it.  But  a  contract  requires  the  assent  of 
the  parties  to  an  agreement,  and  this  agreement  must  be  obli- 
gatory, and,  as  we  have  seen,  the  obligation  must,  in  general, 
be  mutual.  This  is  sometimes  briefly  expressed,  by  saying 
that  there  must  be  "  a  request  on  the  one  side  and  an  assent 
on  the  other."  (c)  A  mere  affirmation,  or  proposition,  is  not 
enough.  Nor  is  this  any  more  a  contract  if  it  be  in  writing 
than  if  spoken  only,  (d)     It  becomes  a  contract  only  when 

(b)  Hazard  v.  New  England  Marine  Wheat.  225  ;  Falls  v.  Gaither,  9  Porter, 

Ins.  Co.  1  Sumner,  218.    In  Bruce  v.  605;   Hutchison   v.  Bowker,   5   M.   & 

Pearson,  3  Johns.  534,  it  was  held  that  W.  535  ;  Hamilton  v.  Terry,  10  E.  L. 

if  a  person  sends  an  order  to  a  merchant  &  E.  473. 

to   send  him  a  particular  quantity  of        ^^j   y,-^^^^;    ^  j     -^  j^^j^g^„  ^,  q^j. 

goods  on  ccrtam  terms  of  credit  and  ,^;^'     ^  ^ing.  N.  C.  75. 
the  merchant  sends  a  less  quantity  or  •'  * 

goods,   at  a  shorter  credit;    and   the        (d)  Tucker  r.  Woods,  12  Johns.  190. 

goods  sent  are  lost  by  the  way,  the  mer-  See  also  Bruce  v.  Pearson,   3   Johns, 

chant  must  bear  the  loss,  for  there  is  no  534;    Tuttle  r.  Love,   7   Johns.   470; 

contract,  express  or  implied,  between  the  Weeks  v.  Tybald,  Noy,  R.  11  ;  1  Rol. 

parties.    So  where  shingles  were  sold  Abr.  6,  (M,)  pi.  1.  —  To  render  a  pro- 

and  delivered  at  $3.25,  but  there  was  a  posed  contract  binding,  there  must  be 

dispute  as  to  whether  the  $3.25  was  for  an  accession  to  its  terms  by  both  par- 

a  bunch  or  for  a  thousand ;  it  was  held,  ties,  —  a  mere    voluntary   compliance 

that,   unless   both   parties   had    under-  with  its  conditions  by  one  who  had  not 

standingly   assented   to   one   of   those  previously  assented  to  it  does  not  ren- 

vicws,  there  was  no  special  contract  as  der  the  other  liable  on  it.     Johnston  v. 

to  the  price.     Greene  r.Bateman,  2  W.  Fessler,  7  Watts,  48;  Ball  v.  Newton, 

6  M.  359.     See  further  Tuttle  v.  Love,  7  Gush.  599.  —  In  Eskridgc  v.  Glover, 

7  Johns.  470  ;  Eliasou  v.  Henshaw,  4  5  Stewart  &  Porter,  264,  it  was  held 

[411] 


400  THE   LAW    OF   CONTRACTS.  [BOOK  II. 

the  proposition  is  met  by  an  acceptance  which  corresponds 
with  it  entirely  and  adequately. 

Many  cases  turn  upon  the  question  whether  this  assent  to 
the  proposition  was  entire  and  adequate.  The  principle  may 
be  stated  thus.  The  assent  must  comprehend  the  whole  of 
the  proposition,  it  must  be  exactly  equal  to  its  extent  and 
provisions,  and  it  must  not  qualify  them  by  any  new  matter. 
Thus,  an  offer  to  sell  a  certain  thing,  on  certain  terms,  may  be 
met  by  the  answer,  "  I  will  take  that  thing  on  those  terms,"  or 
by  any  answer  which  means  this,  however  it  may  be  ex- 
pressed ;  and,  if  the  proposition  be  in  the  form  of  a  question, 
as,  "  I  will  sell  you  so  and  so,  will  you  buy  ?  "  the  whole  of 
this  meaning  may  be  conveyed  by  the  word  "  Yes,"  or  any 
other  simply  affirmative  answer.  And  thus  a  legal  contract 
is  completed. 

But  there  are  cases  where  the  answer,  either  in  words  or 
in  effect,  departs  from  the  proposition  ;  or  varies  the  terms  of  • 
the  offer ;  or  substitutes  for  the  contract  tendered,  one  more 
satisfactory  to  the  respondent.  In  these  cases  there  is  no 
assent,  and  no  contract.  The  respondent  is  at  liberty  to 
accept  \yholly  or  to  reject  wholly ;  but  one  of  these  things 
he  must  do  ;  for  if  he  answers,  not  rejecting,  but  proposing  to 
accept  under  some  modifications,  this  i^  a  rejection  of  the 
offer.  The  party  making  the  offer  may  renew  it ;  but  the 
party  receiving  it  cannot  reply,  accepting  with  modifications, 
and  when  these  are  rejected  again  reply,  accepting  generally, 
and  upon  this  acceptance  claim  the  right  of  holding  the  other 
party  to  his  first  offer. 

An  answer  or  a  compliance  has  been  sometimes  held  in- 
sufficient to  make  a  contract,  where  the  difference  of  terms 
between  the  parties  did  not  seem  to  be  very  important,  (e) 

that  an  incomplete  contract  or  agree-  upon,  by  a  certain  day ;  and  before  that 
ment,  which  one  of  the  parties  has  the  day  arrived  A.  gave  notice  to  B.  that 
option  of  completing  at  a  particular  he  would  not  confirm  the  offered  con- 
day,  raises  a  mutual  right  of  rescission,  tract,  it  was  held  that  no  action  lay  in 
in  the  other  party,  at  any  time  before  favor  of  B.  to  recover  tlie  difterence 
the  ratification  by  the  first.  Thus,  agreed  to  be  paid  by  A.  See  also  Cope 
where  A.  proposed  to  exchange  horses  v.  Albinson,  16  E.  L.  &  E.  470. 
with  B.,  and  give  B.  a  specific  amount,  (?)  Thus  in  Hutchison  v.  Bowker,  5 
as  difference,  which  proposition  B.  re-  M.  &  W.  53.5,  the  action  was  assumpsit 
served    the    privilege    of   determining  for  the  uon-delivery  of  barley.    It  was 

[412] 


CH.  ir.] 


ASSENT. 


401 


In  fact  the  court  seldom  inquires  into  the  magnitude  or  effect 
of  this  diversity;  if  it  clearly  exists,  that  fact  is  enough.  But 
it  is  not  material  by  which  of  the  parties  to  an  agreement 
the  words  which  make  it  one  are  spoken  ;  the  intent  governs, 
and  if  this  be  clear,  and  expressed  with  sufficient  definitive- 
ness,  it  is  enough.  (/) 

This  question  frequently  occurs  in  cases  where  a  guaranty 
was  offered,  and  the  party  receiving  it  acted  on  the  faith  of 
such  guaranty.     But  this  is  not  enough,  without  a  previous 


proved  at  the  trial  that  the  defendants 
wrote  to  the  phuntiffs,  ofterin<j  them  a 
certain  quantity  of  "  good  "  barley, 
upon  certain  terms  ;  to  which  the  plain- 
tiffs answered,  after  quoting  the  defend- 
ant's letter,  as  follows:  —  "Of  which 
oifer  we  accept,  expecting  you  will  give 
us  fine  barley  and  full  weight.''  The 
defendants,  in  reply,  stated  that  their 
letter  contained  no  such  expression  as 
fine  barley,  and  declined  to  ship  the 
same.  Evidence  was  given  at  the  trial 
that  the  terms  "good"  and  "fine" 
were  terms  well  known  in  the  trade; 
and  the  jury  found  that  there  was  a  dis- 
tinction in  the  trade  between  "  good  " 
and  "  fine  "  barley.  Held,  that  although 
it  was  a  question  for  the  jury  what  was 
the  meaning  of  those  ternrs  in  a  mer- 
cantile sense,  yet  that,  they  having  found 
what  that  meaning  was,  it  was  for  the 
court  to  determine  the  meaning  of  the 
contract;  and  the  court  held  that  there 
was  not  a  suflicient  acceptance.  See 
also  Slaymaker  v.  Irwin,  4  Whai-t.  369. 
So  where  there  is  a  material  variance 
between  the  bought  and  sold  notes  de- 
livered by  a  broker  to  the  vendor  and 
vendee,  there  is  no  sale.  Peltiers.  Col- 
lins, 3  Wend.  459 ;  Suydam  v.  Clark, 
2  Sandf.  133.  See  the  late  case  of 
Sivewright  v.  Archibald,  6  E.  L.  &  E. 
286.  So  in  Jordan  v.  Norton,  4  M.  & 
W.  l.'5.5,  which  was  assumpsit  for  a  mare 
sold  and  delivered,  to  which  the  defend- 
ant pleaded  non-assumpsit.  It  appear- 
ed that  the  defendant,  having  seen  and 
ridden  the  mare,  wrote  to  the  plaintiff, 
"  I  will  take  tlie  mare  at  twenty  guineas, 
of  course  warranted;  and  as  she  lays  out, 
turn  her  out  my  mare."  Tlie  plaintiff 
agreed  to  sell  her  for  twenty  guineas. 
The  defendant  subsequently  wrote  again 
to  him,  "My  son  will  be  at  the  World's 
End  (a  public  house,)  on  Monday,  when 
he  will   take  the  mare  and   pay  you; 

35* 


send  anybody  M-ith  a  receipt,  and  the 
money  shall  be  paid ;  only  say  in  the 
receipt,  sound,  and  quiet  in  harness." 
The  plaintiflf  wrote  in  reply,  "  She  is 
warranted  sound,  and  quiet  in  double 
harness;  I  never  put  her  in  single  har- 
ness." The  mare  was  brought  to  the 
World's  End  on  the  Monday,  and  the 
defendant's  son  took  her  away  without 
paying  the  price,  and  without  any  re- 
ceipt or  warranty.  The  defendant  kept 
her  two  days,  and  then  returned  her  as 
being  unsound.  The  learned  judge 
stated  to  tlie  jury  tliat  the  question  was 
whether  the  defendant  had  accepted  the 
mar§,  and  directed  them  to  find  for  the 
defendant  if  they  thought  he  had  re- 
turned her  within  a  reasonable  time; 
and  desired  them  also  to  say  whether 
the  son  had  authority  to  take  her  witli- 
out  the  warranty.  The  jury  found  that 
the  defendant  did  not  accept  the  mare, 
and  that  the  son  liad  not  authority  to 
take  her  away.  Held,  on  motion  to  en- 
ter a  verdict  for  the  plaintiff,  that  there 
was  no  complete  contract  in  writing  be- 
tween the  parties ;  that,  therefore,  the 
direction  of  the  learned  judge  was 
right;  that  the  defendant  was  not  bound 
by  the  act  of  the  son  in  bringing  home 
the  mare,  inasmuch  as  he  had  thereby 
exceeded  his  authority  as  agent;  and 
consequently  that  the  plaintiff  was  not 
entitled  to  recover. 

(/)  Putnam,  J.,  in  Hubbard  v.  Cool- 
idge,  1  Met.  93.  But  where  a  conver- 
sation is  relied  upon  as  proof  of  an 
agreement,  it  is  for  tlie  jury  to  decide 
whether  such  an  assent  of  the  minds  of 
the  parties  took  place  as  to  constitute  a 
valid  contract,  or  whether  what  passed 
between  them  was  a  loose  conversation, 
not  understood  or  intended  as  an  agree- 
ment. Thruston  v.  Thornton,  1  Cush. 
89. 

[413] 


402 


THE   LAW   OF   CONTRACTS. 


[book   II. 


acccjDtance  of  the  guaranty,  (g-)  Nor  does  this  rest  on  a 
merely  technical  rule.  Justice  to  the  guarantor  obviously 
requires  that  he  should  have  notice  of  an  intention  to  fur- 
nish goods  or  money,  or  do  any  similar  thing  on  the  credit  of 
his  guaranty.  And  this  notice  must  be  distinct,  so  that  there 
can  be  no  mistake  about  it,  and  given  in  good  season,  so 
that  the  guarantor  may,  if  he  chooses,  take  proper  measures 
to  secure  himself.  Such  a  case  must,  how^ever,  be  discrimi- 
nated from  one  of  absolute  and  completed  guaranty ;  as 
where  one  writes,  "  I  hereby  guarantee  you,  &c,"  and  de- 
livers the  paper.  This  is  not  an  offer,  or  proposition  to  gua- 
rantee, but  a  declaration  of  the  fact,  and  if  made  on  good 
consideration  binds  the  party,  without  further  action  on  the 
part  of  him  who  receives  it.  (A)     But  where  the  guaranty 


(g)  Thus  in  Gcaunt  v.  Hill,  1  Starkie, 
10,  which  was  assumpsit  for  non-pay- 
ment of  X70.  in  consideration  of  for- 
bearance. The  defendant's  brother  be- 
ing indebted  to  the  plaintiff  in  the  sum 
of  £140,  the  defendant  offered  by  letter 
to  pay  the  plaintiff  £70,  provided  he 
would  give  his  brother  a  full  discharge ; 
and  directed  hun,  in  case  he  accepted 
his  offer,  to  call  upon  him  the  next 
morning.  Held,  that  the  offer  was  not 
binding  upon  the  defendant,  unless  ac- 
cepted within  the  time  appointed,  and 
that  at  all  events  it  must  be  shown  that 
the  plaintiff"  had  acceded  to  the  propo- 
sal in  writing.  —  So  in  Mclver  v.  Eich- 
ardson,  1  M.  &  S.  557,  a  paper  writing 
was  given  by  the  defendant  to  A.  (to 
whose  house  the  plaintiffs  had  declined 
to  furnish  goods  on  their  credit  alone,) 
to  this  effect:  —  "I  understand  A.  & 
Co.  have  given  you  an  order  for  rigging, 
&c.  I  can  assure  you,  from  what  I  know 
of  A.'s  honor  and  probity,  you  will 
be  perfectly  safe  in  crediting  them  to 
that  amount ;  indeed  I  have  no  objection 
to  guarantee  you  against  any  loss  from  giv- 
ing them  this  credit;^'  which  paper  was 
handed  over  by  A.  to  the  plaintiffs,  to- 
gether with  a  guaranty  from  another 
house,  which  they  required  in  addition, 
and  the  goods  were  thereupon  furnish- 
ed :  Held,  that  the  paper  did  not  amount 
to  a  guaranty,  there  being  no  notice 
given  by  the  plaintiffs  to  the  defendant 
that  they  accepted  it  as  such,  or  any 
consent  of  the  defendant  that  it  should 
be  a  conclusive  guaranty.    And  on  the 

[414] 


authority  of  that  case  the  Court  of  Ex- 
chequer afterwards,  in  Mozley  v.  Tink- 
ler, 1  Cr.  M.  &  E.  692,  adopted  the 
same  doctrine.  In  that  case  there  was 
a  guaranty  in  the  following  form  :  — 
"  F.  informs  me  that  you  are  about  pub- 
lishing an  arithmetic  for  him.  I  have 
no  objection  to  being  answerable  as  far 
as  fifty  pounds  ;  for  my  reference  apply 
to  B.'"'  Signed  "  G.  T."  B.  wrote  this 
memoi-audura,  and  added,  "  Witness  to 
G.  T. — J.  B."  It  was  forwarded  by 
B.  to  the  plaintiffs,  who  never  commu- 
nicated their  acceptance  of  it  to  G.  T. 
In  an  action  against  the  latter  on  the 
guaranty,  held,  that  the  plaintiffs,  not 
proving  any  notice  of  acceptance  to  the 
defendant,  were  not  entitled  to  recover. 
See  also  Morrow  v.  Waltz,  18  Penn.  1 1 8. 
(h)  The  distinction  between  a  mere 
offer  to  guarantee,  and  an  actual  gua- 
ranty, is  well  illustrated  by  the  case  of 
Jones  V.  Williams,  7  M.  &  W.  493.  In 
that  case  tlie  defendant's  undertaking 
was  contained  in  two  letters,  addressed 
to  C.  J.,  the  brother  of  the  plaintiff's 
intestate,  E.  J.,  in  the  first  of  which  he 
pressed  C.  J-  to  join,  and  to  induce  his 
brothers  to  join,  in  a  security  for  the 
repayment  of  money  to  be  advanced  to 
the  defendant  for  carrying  on  a  suit  in 
chancery;  and  in  the  second  he  again 
urged  that  they  should  lend  their  names 
for  this  purpose,  and  added  :  —  "I 
should  consider  it  a  matter  of  favor  to 
myself  if  your  brothers  will  join,  and  I 
will  see  that  they  come  to  no  harm." 
Held,  that  the  letters  amounted  to  an 


CH.   II.] 


ASSENT. 


403 


is  made  only  as  an  offer,  or  a  proposition,  there  must  be  a 
distinct  acceptance  of  it.  The  subject  of  guaranty  we  shall, 
however,  consider  specifically  hereafter. 

At  a  sale  by  auction,  every  bid  of  any  one  present  is  an 
offer  by  him.  It  becomes  a  contract  as  soon  as  the  hammer 
falls,  or  the  bid  is  otherwise  accepted ;  (i)  but  until  it  is  ac- 
cepted it  may  be  withdrawn  by  the  bidder,  because  until 
then  it  is  not  obligatory  on  him,  for  want  of  the  assent  of  the 
owner  of  the  property  by  his  agent  the  auctioneer. 


SECTION  11. 

CONTRACTS   ON  TIME. 

Propositions  or  offers  on  time   involve   questions  of  the 
assent  of  parties,  which  are  sometimes  difficult,  (j)     Strictly 


actual  guaranty,  on  which  the  defendant 
was  liable  to  the  plaintiff,  and  not  merely 
to  a  representation  with  a  view  to  the 
parties  doing  an  act,  against  the  conse- 
quences of  which  they  shoxAd  afterwards 
be  protected. 

(0  Payne  v.  Cave,  3  T.  R.  148.  The 
court  there  said:  —  "The  auctioneer  is 
the  agent  of  the  vendor,  and  the  assent 
of  both  parties-  is  necessary  to  make 
the  contract  binding;  that  is  signified 
on  the  part  of  the  seller,  by  knocking 
down  the  hammer,  which  was  not  done 
here  till  the  defendant  had  retracted. 
An  auction  is  not  unaptly  called  locus 
pcenitentice.  Every  bidding  is  nothing 
more  than  an  offer  on  one  side,  which 
is  not  binding  on  either  side  till  it  is 
assented  to." — As  sales  at  auction  are 
clearly  within  the  statute  of  frauds, 
Hinde  v.  Whitehouse.  7  East,  568  ;  Ken- 
worthy  V.  Schofield,'  2  B.  &  C.  945; 
Brent  v.  Green,  6  Leigh,  16,  the  assent 
would  not  be  binding  unless  in  writing, 
if  the  case  came  within  the  terms  of  that 
statute. 

(_;')  This  subject  was  discussed  in  the 
late  case  of  Boston  &  Maine  Railroad 
V.  Bartlett,  3  Cush.  224.  It  was  tliere 
held,  that  a  proposition  in  writing  to  sell 
land,  at  a  certain  price,  if  taken  within 
thirty  days,  is  a  continuing  offer,  which 
may  be  retracted  at  any  time;  but  if 
not  being  retracted,  it  is  accepted  within 


the  time,  such  offer  and  acceptance  con- 
stitute a  valid  contract,  the  specific  per- 
formance of  which  may  be  enforced  by 
a  bill  in  equity.  Fletcher,  J.,  there  ob- 
served:—  "In  the  present  case,  though 
the  writing  signed  by  the  defendants 
was  but  an  offer,  and  an  offer  which 
might  be  revoked,  yet  while  it  remained 
in  force  and  unrevoked  it  was  a  con- 
tinuing offer  during  the  time  limited  for 
acceptance ;  and  during  the  whole  of 
that  time,  it  was  an  offer  every  instant, 
but  as  soon  as  it  was  accepted  it  ceased 
to  be  an  offer  merely,  and  then  ripened 
into  a  contract.  The  counsel  for  the 
defendants  is  most  surely  in  the  right, 
in  saying  that  the  writing  when  made 
was  without  consideration,  and  did  not 
therefore  form  a  contract.  It  was  then 
but  an  offer  to  contract ;  and  the  parties 
making  the  offer  most  undoubtedly 
might  have  withdrawn  it  at  any  time 
before  acceptance.  But  when  the  ofi'cr 
was  accepted,  the  minds  of  the  parties 
met,  and  the  contract  was  comiiletc. 
There  was  then  the  meeting  of  the 
minds  of  the  parties,  which  constitutes 
and  is  the  definition  of  a  contract.  The 
acceptance  by  the  plaintitTs  constituted 
a  sufficient  legal  consideration  for  the 
engagement  on  the  part  of  the  defend- 
ants. There  was  then  nothing  wanting, 
in  order  to  perfect  a  valid  contract  on 
the  part  of  the  defendants.     It  was  pre- 

[415] 


40J:  THE  LAW   OF   CONTRACTS.  [eOOK  II. 

speaking,  all  offers  are  on  time.  If  one  says,  I  will  sell  you 
this  thir)g  for  this  money,  and  the  other  answers,  I  will  buy 
that  thing  at  that  price,  all  authorities  agree  that  this  is  a 
contract.  But  the  answer  follows  the  offer ;  it  cannot  be 
actually  simultaneous  with  it,  although  it  is  sometimes  said 
to  be  so.  But  the  offer  is  regarded  as  continuing  until  the 
acceptance,  if  the  acceptance  be  made  at  once.  Nor  can  it 
be  necessary  that  the  acceptance  should  follow  the  offer 
instantaneously.  Though  the  party  addressed  pauses  a  mi- 
nute or  two  for  consideration,  still  his  assent  makes  a  con- 
tract, for  the  offer  continues  unless  it  be  expressly  withdrawn. 
But  how  long  will  it  continue  ?  The  only  answer  must  be, 
in  general,  a  reasonable  time  ;  [jj)  and  what  this  is  must  be 
determined  by  the  circumstances  of  the  case.  If  the  party 
addressed  goes  away,  and  returns  the  next  month  or  the  next 
week,  and  says  he  will  accept  the  proposition,  he  is  too  late 
unless  the  proposer  assents  in  his  turn.  So  it  would  be  pro- 
bably if  he  came  the  next  day,  or  the  next  hour ;  or  perhaps 
if  he  went  away  at  all  and  afterwards  returned. 

But  the  proposer  may  himself  determine  hofv  long  the 
offer  shall  continue.  He  may  say,  I  will  give  you  an  hour, 
or  until  this  time  to-morrow^,  or  next  week,  to  make  up  your 
mind.  Then  the  party  to  whom  the  proposition  is  made 
knows  how  long  the  offer  is  to  continue.  He.  may  avail 
himself  of  the  hour,  the  day,  or  the  week  given,  for  inquiry 
or  consideration,  or  making  the  necessary  arrangements ;  and 
if  within  the  prescribed  time  he  expresses  his  assent,  (sup- 


cisely  as  if  the  parties  had  met  at  the  has  been  induced  to  rely  on  such  an 

time  of  the  acceptance,  and  the  offer  had  engagement,  shoukl  have  no  remedy  in 

then  been  made  and  accepted,  and  the  case  of  disappointment.     But,  whether 

bargain  completed  at  once.     A  different  wisely  and  equitably  or  not,  the  com- 

doctrine,  however,  prevails  in  France,  monlawunyieldingly  insists  upon  a  con- 

and  Scotland,  and  Holland.     It  is  there  sideration,  or  a  paper  with  a  seal  at- 

held,  that  whenever  an  offer  is  made,  tached.     The  authorities,  both  English 

gr.anting  to  a  party  a  certain  time  with-  and  American,  in  support  of  this  view 

in  which  he  is  to  be  entitled  to  decide  of  the  subject,  are  very  numerous  and 

whether  he  will   accept  it  or  not,  the  decisive;  but  it  is   not   deemed  to  be 

party  making  such  offer  is  not  at  liberty  needful  or  expedient  to  refer  particu- 

to  withdraw  it  before  the  lapse  of  the  larly  to  them,  as  they  are  collected  and 

appointed  time.      There  are  certainly  commented  on  in  several  reports,  as  well 

very  strong  reasons  in  support  of  this  as  iu  the  text-books." 

doctrine.     Highly   respectable   authors  ,  ••>  t>    i     •,,         r^^             •,  -r.    . 

regard  it  as  inconsistent  with  the  plain  Jjj]  Beckwith  v.  Cheever,!  Foster, 

principles  of  equity,  that  a  person,  who  ^^  i  ^*^'"'^  ^-  ^"^•"^'•'  ^  ^^''^-  l'^^' 
[416] 


CH.   II.]  ASSENT.  405 

posing  the  proposition  not  in  the  mean  time  withdrawn,)  he 
completes  the  contract  as  effectually  as  if  he  had  answered 
in  the  same  way  at  the  first  moment  after  the  offer  was 
made,  {jk) 

It  seems  irrational  to  say  that  the  proposer  is  not  bound 
by  receiving  such  delayed  assent,  although  it  is  given  within 
the  specified  time,  because  no  consideration  had  been  paid 
him  for  the  delay,  and  for  the  continuance  of  the  offer.  If  it 
were  said  that  where  one  makes  an  offer,  and  the  other  instant- 
ly accepts,  the  offerer  nevertheless  is  not  bound,  because  there 
is  no  consideration,  then  it  might  be  said  consistently  that  he 
is  not  bound  by  an  answer  made  within  a  time  specified  by 
him.  But  no  one  doubts  that  the  offerer  is  bound  by  an  in- 
stantaneous acceptance,  although  he  received  no  consider- 
ation for  the  offer.  And  what  difference  can  it  make  as  to 
the  consideration  or  the  want  of  it,  whether  the  acceptance 
follows  the  offer  in  a  second,  or  in  a  minute  or  two,  or  in  a 
longer,  but  still  reasonable  time,  or  in  a  still  longer  time 
limited  and  specified  by  the  proposer  himself.  All  these 
cases  stand  on  the  same  footing  in  respect  of  consideration. 

Undoubtedly,  if  the  offerer  gives  a  day  for  acceptance, 
without  consideration  for  the  delay,  he  may  at  any  time 
within  that  day,  before  acceptance,  recall  his  offer.  So  he 
may  if  he  gives  no  time.  If  he  makes  an  offer,  and  instantly 
recalls  it  before  acceptance,  although  the  other  party  was 
prepared  to  accept  it  the  next  instant,  the  offer  is  effectually 
withdrawn.  But  acceptance  before  withdrawal  binds  the 
parties,  if  made  while  the  offer  continues ;  and  the  offer  does 
continue  in  all  cases,  either  a  reasonable  time,  (and  that 
only,)  or  the  time  fixed  by  the  party  himself. 

It  may  be  said,  that  whether  the  offer  be  made  for  a  time 
certain  or  not,  the  intention  or  understanding  of  the  parties 
is  to  govern.  If  the  proposer  fixes  a  time  he  expresses  his 
intention,  and  the  other  party  knows  precisely  what  it  is.  If 
no  definite  time  is  stated,  then  the  inquiry  as  to  a  reasonable 
time  resolves  itself  into  an  inquiry  as  to  what  time  it  is  ra- 
tional to  suppose  that  the  parties  contemplated  ;  and  the  law 

(jh)  Wright  V.  Bigg,  21  E.  L.  &E.591. 

[417] 


406  THE  LAW   OF   CONTRACTS.  [BOOK   II. 

will  decide  this  to  be  that  time  which  as  rational  men  they 
ought  to  have  understood  each  other  to  have  in  mind. 

We  hold  this  to  be  the  true  principle,  and  to  be  capable  of 
universal  application.  Thus  where  many  subscribe  for  a 
common  result  on  a  certain  condition,  the  first  question  may 
be  as  to  the  consideration;  and  this  we  have  already  dis- 
cussed. And  it  would  be  another  question  how  long  the 
parties  are  bound  by  the  promise  contained  in  such  sub- 
scription. If  no  time  be  agreed  on,  and  there  be  no  express 
withdrawal,  then  the  law  must  choose  between  the  period  of 
legal  presumption,  which  would  generally  be  twenty  years, 
and  the  principle  of  reasonable  time ;  and  the  first  alterna- 
tive would  be  very  unreasonable,  and  might  be  very  oppres- 
sive. The  court  would  look  into  all  the  circumstances  of 
each  case,'and  inquire  what  the  parties  actually  understood 
or  intended,  or,  regarding  them  as  rational  men,  what  they 
must  be  supposed  to  have  intended.  And  it  seems  difficult 
to  reject  this  rule,  without  holding  principles  which  would  lead 
to  the  conclusion  that  one  who  off'ers  goods  to  another,  and, 
receiving  no  answer,  sells  them  to  a  third  person  a  year  after, 
may  still  be  held  by  him  to  whom  the  offer  was  first  made, 
if  he  shall  then  see  fit  to  accept  the  offer ;  a  conclusion  so 
wholly  unreasonable  as  to  be  impossible. 

An  analogous  and  closely  connected  question  has  arisen 
where  the  proposition  and  the  reply  are  both  made  by  letter. 
And  as  we  think,  it  must  be  governed  by  the  same  princi- 
ples. "We  consider  that  an  offer  by  letter  is  a  continuing 
offer  until  the  letter  be  received,  and  for  a  reasonable  time 
thereafter,  during  which  the  party  to  whom  it  is  addressed 
may  accept  the  offer.  We  hold  also  that  this  offer  may  be 
withdrawn  by  the  maker  at  any  moment ;  and  that  it  is 
withdrawn  as  soon  as  a  notice  of  such  withdrawal  reaches  the 
party  to  whom  the  offer  is  made,  and  not  before,  (k)     If, 

(Jt)  Notwithstanding  the  case  of  Mc-  Oxley,  3  T.  E.  653,   was  there  relied 

Culloch  i;.  Eagle   Ins.  Co.  1  Pick.  281,  upon' by  counsel,   but  the.  court   said 

■we  deem  the  rule  of  the  text  to  be  the  "  that  if  that  were  so,  no  contract  could 

well-settled  law  in  England  and  in  this  everbecompletcdby  the  post.  For  if  the 

country.    It  was  first  laid  down  in  Eng-  defendants  were  not  bound  by  their  offer 

land  in  Adams  v.  Lindseli,  1  B.  &  Aid.  when  accepted  by  the  plaintiffs  till  the 

681,  in   1818.     The   case   of  Cooke  u.  answer  was  received,  then  the  plaintiffs 

[418 


CH.   II.] 


ASSENT. 


407 


therefore,  that  party  accepts  the  offer  before  such  withdrawal, 
the  bargain  is  completed  ;  there  is  then  a  contract  founded 
upon  mutual  assent.  And  an  acceptance  having  this  effect 
is  made,  when  the  party  receiving  the  offer  puts  into  the  mail 
his  answer  accepting  it.  Thus,  if  A.,  in  Boston,  on  the  first 
day  of  January,  writes  to  B.,  in  Baltimore,  making  an  offer, 
and  this  letter  reaches  Baltimore  on  the  third,  and  B.  forth- 
with answers  the  letter,  accepting  the  offer,  putting  the  letter 
into  the  mail  that  day;  and  on  the  second  of  January  A. 
writes  withdrawing  the  offer,  and  his  letter  of  withdrawal 
reaches  B.  on  the  fourth,  there  is  nevertheless  a  contract  made 
between  the  parties.     If  the  offer  was  to  sell  goods,  B.  on 


ought  not  to  be  bound  till  after  they  had 
received  the  notification  that  the  defend- 
ants had  received  their  answer  and  as- 
sented to  it.  And  so  it  might  go  on  ad 
infinitum.  The  defendants  must  be  con- 
sidered in  law  as  making,  during  every 
instant  of  the  time  their  letter  was  tra- 
velling, the  same  identical  offer  to  the 
plaintiffs,  and  then  the  contract  is  com- 
pleted by  the  acceptance  of  it  by  the 
latter.  Then  as  to  the  delay  in  notify- 
ing the  acceptance,  that  arises  entirely 
from  the  mistake  of  the  defendants,  and 
it  therefore  must  be  taken  as  against 
them,  that  the  plaintiffs'  answer  was  re- 
ceived in  course  of  post."  See  also 
Kennedy  v.  Lee,  3  Meriv.  441.  And  in 
the  late  case  of  Potter  v.  Sanders,  6 
Hare,  1,  decided  in  1846,  a  purchaser 
offered  a.  price  for  an  estate,  and.  the 
vendor,  by  a  letter  sent  by  post,  and  re- 
ceived by  the  purchaser  the  day  after  it 
was  put  into  the  post-ofRce,  accepted 
the  offer.  Held,  that  the  vendor  was 
bound  by  the  contract  from  the  time 
when  he  posted  the  letter,  although  it 
was  not  received  by  the  purchaser  until 
Ihe  following  day.  And  this  rule  was 
adopted  by  the  House  of  Lords  in  the 
still  later  case  of  Dunlop  v.  Iliggins,  I 
House  of  Lords  Cases,' 381.  It  was 
there  laid  down,  that  a  letter  oifering  a 
contract  does  not  bind  the  party  to 
whom  it  is  addressed  to  return  an  an- 
swer by  the  very  next  post  after  its  de- 
livery, or  to  lose  the  benefit  of  the  con- 
tract, but  an  answer,  posted  on  the  day 
of  receiving  the  offer,  is  sufficient ;  that 
the  contract  is  accepted  by  the  posting 
of  a  letter  declaring  its  acceptance ;  tliat 
a  person  putting  into  the  post  a  letter 


declaring  his  acceptance  of  a  contract 
offered,  has  done  all  that  is  necessary 
for  him  to  do,  and  is  not  answerable  for 
casualties  occurring  at  the  post-office. 
See  also  Stocken  v.  Collen,  7  M.  &  W. 
515.  —  With  the  exception  of  Tennes- 
see, (Gillespie  v.  Edmonston,  11  Hump. 
553,)  the  doctrine  of  Adams  v.  Lind- 
sell  is  the  established  law  in  this  coun- 
try. Beckwith  r.  Cheever,  1  Foster,  41 ;, 
Brisban  v.  Boyd,  4  Paige,  17  ;  Avcrill 
V.  Hedge,  12  Conn.  436;  Maetier  v. 
Frith,  6  Wend.  103 ;  Vassar  v.  Camp, 
14  Barb.  341  ;  Levy  v.  Cohen,  4  Geo. 
1 ;  Eliason  v.  Henshaw,  4  Wheat.  228 ; 
Chiles  V.  Nelson,  7  Dana,  281  ;  Falls  v. 
Gaither,  9  Porter,  605 ;  Hamilton  v. 
Lycoming  Mutual  Ins.  Co.  5  Barr,  339, 
where  the  case  of  McCulloch  v.  Eagle 
Insurance  Co.  is  ably  examined.  The 
late  case  of  Tayloe  v.  Merchants  Fire 
Ins.  Co.  9  How.  390,  is  a  strong  case  on 
this  subject.  It  was  there  held  that 
where  there  was  a  correspondence  rela- 
ting to  the  insurance  of  a  house  against 
fire,  the  insurance  company  making 
known  the  terms  upon  which  they  were 
Avilling  to  insure,  the  contract  was  com- 
plete when  the  insured  placed  a  letter 
in  the  post-office  accepting  the  terms  ; 
and  the  house  having  been  burned  down 
whilst  tiie  letter  of  acceptance  was  in 
progress  by  the  mail,  the  company  were 
held  responsible.  Sec  also  The  Palo 
Alto,  Daveis,  R.  344.  In  the  late  case 
of  Duncan  v.  Topham,  8  C.  B.  225,  the 
same  principle  was  adopted,  and  the 
contract  was  said  to  be  closed  by  mail- 
ing the  letter  of  acceptance,  although 
it  never  reached  its  destination. 

[419] 


408*  THE  LAW   OF   CONTRACTS.  [BOOK  II. 

tendering  the  price  may  claim  the  goods ;  if  the  offer  was  to 
insure  B.'s  ship,  B.  may  tender  the  premium  and  demand  the 
policy,  and  hold  A.  as  an  insurer  of  his  ship.  And  so  of  any 
other  offer  or  proposition. 

*  "We  have  supposed  these  letters  to  be  properly  addressed 
and  mailed,  and  to  reach  the  proper  party  at  a  proper  time. 
Cases  undoubtedly  may  occur  where  there  is  delay  and  hin- 
drance, and  the  cause  of  this  may  be  the  fault  of  the  propo- 
ser, or  of  the  acceptor,  or  of  neither.  Such  cases  may  form 
exceptions  to  the  principle  above  stated,  and  must  be  decided 
on  their  own  facts  and  merits,  and  by  rules  which  are  spe- 
cially adapted  to  them.  But  we  should  state  as  the  general 
rule  what  was  lately  declared  to  be  law  by  the  House  of 
Lords  ;  that  if  the  party  receiving,  an  offer  by  letter,  put  his 
answer  of  acceptance  into  the  mail,  he  has  done  all  that  he 
could  do,  and  is  in  no  way  responsible  for  the  casualties  of 
the  mail  service,  (kk) 

{kk)  See  Dunlop  v.  Hipgins,  1  House  of  Lords  Cases,  381,  cited  in  last  note ; 
Duncan  v.  Topham,  8  C  B.  222. 
[420] 


BOOK  III. 


THE    SUBJECT-MATTER    OF    CONTRACTS. 


VOL.   I.  36  [421J 


BOOK    III. 


CHAPTER  I. 

PRELIMINARY  REMARKS. 

The  subject-matter  of  every  contract  is  something  which 
is  to  be  done,  or  which  is  to  be  omitted.  No  very  precise  or 
logical  division  and  classification  of  these  various  things  is 
known  to  the  common  law.  The  division  stated  and  fol- 
lowed in  the  Pandects,  and  referred  to  by  Blackstone,  {I)  is 
exact  and  rational.  It  recognizes  four  species  of  contracts  ;  — 
Do  tit  Des ;  Facio  iit  Facias;  Facio  ut  Des ;  Do  id  Facias. 
But  this  division  is  not,  in  the  civil  law,  strictly  followed. 
The  whole  subject  of  purchase  and  sale  (empiio  et  venditio,) 
is  treated  of  before  this  division  is  introduced,  {m)  Black- 
stone  says,  "  of  this  kind  {Do  ut  Des)  are  all  sales  of  goods." 
But  in  fact  it  seems  to  be  confined  to  giving  a  thing  (not 
money)  to  receive  a  thing  in  return. 

It  is  impossible  to  make  much  use  of  this  classification,  in 
exhibiting  the  rules  of  the  common  law^  in  relation  to  con- 
tracts ;  and  the  arrangemient  of  the  subject-matters  of  con- 
tracts which  we  have  adopted  is  the  following.  We  shall 
treat  of  Contracts, 

1.  For  the  Purchase  and  Sale  of  Ileal  Estate. 

2.  For  the  Hiring  of  Real  Estate. 

(/)  2  Bl.  Comm.  444.  lib.  18,  tit.  18.    Do  ut  des,  &c.    Pan- 

(m)  Emptio  ct  venditio.    Pandects,     dects,  lib.  19,  tit.  5.  art.  1,  sect.  4. 

[423] 


412  THE   LAW  OF   CONTRACTS.  .  [BOOK  III. 

3.  For  the  Purchase  and  Sale  of  Chattels. 

4.  For  the  Purchase  and  Sale  of  Chattels  with  warranty. 

5.  Of  the  right  of  Stoppage  in  transitu. 

6.  For  the  Hiring  of  Chattels. 

7.  Of  Guaranty. 

8.  For  the  Hiring  of  Persons. 

9.  For  Service  generally. 

10.  Of  and  in  relation  to  Marriage. 

11.  Of  Bailment. 

Before,  however,  considering  these  topics  severally,  a  few 
words  may  be  said  of  the  remedy  which  the  common  law 
affords,  for  injury  sustained  by  a  breach  of  a  contract  to  do  a 
specific  thing. 

Where  the  thing  to  be  done  is  the  payment  of  money, 
there,  in  general,  the  remedy  is  adequate  and  perfect.  But 
where  the  thing  to  be  done  is  any  thing  else  than  the  pay- 
ment of  money,  there  the  common  law  can  give  only  a 
remedy  which  may  be  entirely  inadequate  ;  for  it  can  give 
only  a  money  remedy.  The  foundation  of  the  common  law 
of  contracts  may  be  said  to  be  the  giving  of  damages  for  the 
breach  of  a  contract.  And  even  where  the  contract  is  speci- 
fically for  the  payment  of  money  and  for  nothing  else,  still 
the  law  does  not,  generally,  in  form,  decree  an  execution  of 
the  contract,  but  damages  for  the  breach  of  it.  If  an  action  be 
brought  upon  a  promissory  note,  or  a  covenant,  the  plaintiff' 
sets  forth  the  contract  and  the  breach,  and  does  not  pray  for 
an  execution  of  it ;  but  he  sets  forth  also  the  damages  he  has 
sustained,  and  claims  them.  The  action  of  debt  may,  it  is 
true,  be  brought,  not  only  on  a  bond,  but  upon  many  simple 
contracts;  and  in  this  action  the  payment  of  the  money  due 
is  directly  demanded,  and  such  is  the  judgment  if  the  plaintiff 
recovers  ;  but  this  action  is  not  much  used  at  the  present 
time,  in  this  country  at  least,  to  enforce  simple  contracts. 
Where  the  contract  is  for  any  other  thing  than  the  payment 
of  money,  the  common  law  knows  no  other  than  a  money 
remedy ;  for  it  has  no  power  to  enforce  the  specific  perform- 
ance of  a  contract,  with  the  exception  only  of  those  money 
contracts  for  which  debt  will  lie. 

This  inability  of  the  common  law  was  among  the  earlier 

[424] 


CH.  I.]  PRELIMINARY  REMARKS.  413 

and  most  potent  causes  which  gave  rise  to  courts  of  equity  ; 
for  these  courts  have,  both  in  England  and  in  this  country,  a 
very  connplete  jurisdiction  over  this  class  of  cases.  Perhaps 
this  apparent  defect  in  the  common  law  may  be  explained, 
by  supposing  that  originally  the  action  of  debt  gave  the 
power  of  compelling  performance  in  fact  in  the  great  major- 
ity of  cases  which  required  it,  and  that  the  comparative  dis- 
use of  this  action,  and  the  coming  into  notice  of  the  great 
variety  of  other  cases  in  which  this  power  was  needed  to  do 
justice,  occurred  after  the  forms  of  the  common  law  had  be- 
come fixed,  and  when  there  was  a  great  unwillingness  in  the 
courts  to  change  or  enlarge  them;  and  when  also  another 
court  had  grown  up  which  had  full  power  in  all  such  cases. 
However  this  may  be,  this  defect  in  the  common  law,  which 
must  be  felt  more  and  more  sensibly,  as  society  advances 
beyond  the  point  at  which  it  is  willing  to  measure  all  rights 
and  wrongs  by  a  money  standard,  is  one  cause,  undoubtedly, 
of  the  disposition  which  is  manifesting  itself  in  this  country 
to  bring  together  all  common-law  and  all  equity  powers  of 
preventing  wrong  and  enforcing  right ;  as  has  been  done,  or 
attempted  to  be  done,  in  New  York,  by  their  last  Revised 
Code;  and  as  will,  we  think,  be  done  in  other  States  of  this 
Union,  in  some  form  and  in  some  measure. 

36*  [425] 


414 


THE   LAW   OF   CONTRACTS. 


BOOK  III. 


CHAPTER   11. 

PURCHASE  AND  SALE  OF  REAL  PROPERTY. 

Conveyances  of  real  property  are  made  by  deed,  which 
we  do  not  propose  to  consider  at  present.  But  simple  con- 
tracts are  often  made  for  the  purchase  of  real  estate,  and  the 
specific  performance  of  these  contracts  may  be  enforced  in 
equity,  (m)  or  by  actions  brought  on  them  at  common  law.  (o) 
Neither  equity  nor  law  will  enforce  such  contract,  if  it  be 
founded  upon  fraud,  (p)  or  gross  misrepresentation,  {q)  or 
upon  an  intentional  concealment  of  an  important  defect  in  or 
objection  to  an  estate  ;  (r)  but  a  mere  inadequacy  of  price  is 
not  sufficient  to  avoid  it.  (s) 


{»)  That  specific  performance  of  con- 
tracts for  the  sale  or  purchase  of  rail- 
way shares  will  be  enforced  in  equity, 
sceDuncuft  v.  Albrecht,  12  Sim.  189; 
Shaw  V.  Fisher,  12  Jur.  152 ;  Wynne  v. 
Price,  13  Jur.  295.  —  The  idea  formerly 
entertained,  that  a  court  of  equity  might 
award  compensation  for  non-perform- 
ance of  a  contract  of  sale,  is  now  explod- 
ed. Todd  V.  Gee,  17  Ves.  273  ;  Sains- 
bury  V.  Jones,  5  Myl.  &  Cr.  1. 

(o)  See  Moses  v.  McFerlan,  2  Burr. 
1011  ;  Farrer  v-  Nightingal,  2  Esp.  639  ; 
Squire  v.  Tod,  1  Camp.  293.  It  seems 
that  if  the  subject-matter  of  the  contract 
be  such  that  both  vendor  and  purchaser 
would  be  reimbursed  by  damages,  a 
court  of  equity  will  decline  to  interfere, 
and  will  leave  a  party  to  his  remedy  at 
law.  This  is  the  case  in  ordinary 
agreements  for  the  sale  of  stock.  Cud 
V.  Rutter,  1  P.  Wms.  570  ;  Nutbrown  v. 
Thornton,  10  Ves.  159.  —  It  has  been 
thought,  however,  that  in  some  cases  a 
bill  in  equity  for  specific  performance 
ought  to  be  maintained  in  such  con- 
tracts. See  2  Story,  Eq.  Juris.  §  717, 
724. 

(p)  See  Davis  v.  Symonds,  1  Cox, 
407  ;  Seymour  v.  Delancey,  6  Johns. 
,Ch.  225*;  Acker  v.  Phccnix,  4   Paige, 

[426] 


305  ;  Nellis  r.  Clark,  20  Wend.  24  ; 
Miller  v.  Chetwood,  1  Green's  Ch.  199; 
Clement  v.  Reid,  9  Smedes  &  Marsh. 
535. 

(g)  Cadman  v.  Horner,  18  Ves.  10. 
In  this  case  the  purchaser  was  plaintiff, 
and  was  the  seller's  agent,  and  specific 
performance  was  refused,  because  he 
had  represented  to  the  seller  that  the 
houses  had  been  injured  by  a  flood,  and 
would  require  between  .£40  and  £50  to 
repair  them,  whereas  40s.  would  have 
repaired  the  damages.  See  also  Lord 
Clermont  v.  Tasburg,  1  Jac.  &  Walk. 
112;  Barker  v.  Harrison,  2  Coll.  546  ; 
Best  V.  Stow,  2  Sandf.  Ch.  298  ; 
Schmidt  v.  Livingston,  3  Edw.  213j 
Rodman  v.  Zilley,  Saxton,  320 ;  Brea- 
ley  V.  Collins,  Younge,  317. 

(r)  -  But  general  statements  by  a 
seller,  although  not  the  whole  truth, 
Avill  not  amount  to  such  misrepresenta- 
tion as  to  avoid  the  contract.  See  Fen- 
ton  V.  Browne,  14  Ves.  144  ;  Lowndes 
V.  Lane,  2  Cox,  303. 

(s)  Whitefield  v.  McLeod.  2  Bav, 
380;  Stewart  r.  The  State,  2  Harr.& 
Gill,  114;  Knobb  v.  Lindsay,  5  Ham. 
472 ;  Osgood  v.  Franklin,  2  Johns.  Ch. 
R.  1  ;  Coles  v.  Trecothick,  9  Ves. 
(Sumner's  ed.)  234  :  Woodcock  v.  Ben- 


CH.  II.] 


PURCHASE   AND    SALE   OF   REAL   ESTATE. 


415 


Estates  are  frequently  sold  at  auction ;  and  in  that  case 
the  plans  and  descriptions  should  be  such  as  will  give  true 
information  to  such  persons  as  ordinarily  attend  such 
sales ;  (t)  and  if  these  descriptions  are  written  or  printed,  and 
circulated  among  the  buyers,  or  conspicuously  posted  in 
their  sight,  they  cannot  be  controlled  by  verbal  declarations 


net,  1  Cow.  733 ;  Jliutuni  v.  Seymour, 
4  Johns.  Ch.  R.  500.  But  inadequa- 
cy of  price  if  gross,  and  attended  by 
circumstances  evincing  unconscientious 
advantage  talien  by  the  purcliascr  of 
the  improvidence  and  distress  of  the 
vendor,  will  avoid  the  contract  in  equi- 
ty, although  the  contract  be  executed. 
McKinnev  I".  Pinckard,  2  Leigh.  149; 
Evans  r."  Llewellyn,  2  Bro.  C.  C.  150. 
See  Gi'oves  v.  Perkins,  6  Sim.  576: 
Stnrgc  V.  Sturge,  14  Jur.  159.  And  if 
the  inadequacy  of  price  is  so  gross  as  to 
be  itself  sufficient  evidence  of  fraud,  then 
the  contract  will  be  void.  See  Rice  i: 
Gordon,  11  Beavan,  2G5.  But  an  in- 
equality of  price,  in  order  to  amount  to 
a  fraud,  must  be  so  strong  and  manifest 
as  to  shock  the  conscience  and  con- 
found the  judgment  of  any  man  of  com- 
mon sense.  Osgood  v.  Franklin,  2 
Johns.  Ch.  R.  23 ;  and  see  How  v. 
Weldon,  2  Ves.  Sen.  516;  Gwvnno  v. 
Heaton,  1  Bro.  C.  C.  9  ;  Coles  "v.  Trc- . 
cothick,  9  Ves.  246.  —  Although  inade- 
quacy of  price  is  not  a  ground  for  de- 
creeing an  agreement  to  be  delivered 
up,  or  a  sale  rescinded,  (unless  its 
grossness  amounts  to  fraud,)  yet  it  may 
be  sufficient  for  the  court  to  refuse  to 
enforce  performance.  Osgood  v.  Frank- 
lin, supra;  Mortlock  i\  Bullcr.  10  Ves. 
292  ;  Day  v.  Newman,  cited  in  Mortlock 
r.  Bullcr.     See  also  ante  page  =*362. 

{t)  If  there  is  a  misdescription  in  tlie 
plan  and  specification  the  purchaser  is 
not  bound  to  complete  the  contract. 
Dykes  v.  Blake,  4  Bing.  N.  C.  463.  In 
tliis  case,  by  the  particulars  of  sale,  lot 
13  was  described  as  building  ground, 
and  the  adjoining  lot  12  as  a  villa,  sub- 
ject to  liberty  for  the  purchaser  of  lot  1 
to  come  on  the  premises  to  repair 
drains,  &c.,  as  reserved  in  lot  7.  The 
reservation  in  lot  7  referred  to  a  lease, 
which  gave  tlic  occupier  of  that  and 
several  adjoining  lots,  composing  a  row 
of  houses,  a  carriage- w.iy  in  common, 
in  front  of  the  lots,  and"  a  footway  at 
the  back,  and  also  a  footway  over  lot 
13.     The   particulars   contained   plans 


which  disclosed  the  carriage-way  in 
front,  and  the  footway  at  the  back  of 
the  houses,  but  not  the  footway  over  lot 
13.  But  they  stated  that  the  lease  of 
lot  7  might  be  seen  at  the  vendor's 
office,  and  would  be  produced  at  the 
sale.  The  plaintiff  having  purcliased 
lots  12  and  1.3,  by  one  contract,  in  igno- 
rance of  the  footway  over  lot  13,  it  was 
held  that  the  misdescription  was  such  as 
to  entitle  him  to  i-escind  the  contract  as 
to  both.  See  also  Adams  v.  Lambert, 
2  Jur.  1078  ;  Robinson  v.  Musgrove.  8 
C.  &  P.  469  ;  Taylor  v.  Mortindale^  1 
Y.  &  C,  C.  C.  658  ;  Symons  v.  James, 
Id.  490  ;  Martin  v.  Cotter,  3  Jones  &  Lat. 
506.  '•  If  the  description  be  substan- 
tially true,  and  be  defective  or  inaccu- 
rate, in  a  slight  degree  only,  the  pur- 
chaser will  be  required  to  perform  the 
contract,  if  the  sale  be  fair  and  the  title 
good.  Some  care  and  diligence  must 
be  exacted  of  the  purchaser.  If  eveiy 
nice  and  critical  objection  be  admissi- 
ble, and  sufficient  to  defeat  the  sale,  ifc » 
M'ould  greatly  impair  the  efficacy  and 
value  of  public  judicial  sales  ;  and  there- 
fore, if  the  purchaser  gets  substantially 
the  thing  for  which  he  bargained,  he  may 
generally  be  held  to  abide  by  the  pur- 
chase, with  the  allowance  of  some  de- 
duction from  the  price  by  way  of  com- 
pensation for  any  small  deficiency  in 
the  value,  b}'-  reason  of  the  varia- 
tion. 2  Kent,  Comm.  437  ;  King  v. 
Bardeau,  6  Johns.  Rep.  38.  Tiie 
estate  cannot  be  too  minutely  describ- 
ed in  the  particulars  ;  for,  although 
it  is  impossible  that  all  the  particulars 
relative  to  the  quantity,  the  situation, 
&c.,  should  be  so  specifically  laid  down, 
as  not  to  call  for  some  allowance  when 
the  bargain  comes  to  be  e>tecuted  ;  yet 
if  a  person,  liowever  little  conversant 
with,  the  actual  situation  of  his  estate, 
will  give  a  description,  he  must  be 
bound  by  that  whether  conversant  of  it 
or  not.  See  Judson  v.  Wass,  11  Johns. 
525,  3  Cranch,  270,  2  Bay,  11."  Dart 
on  Vendors  and  Purchasers,  Am.  ed.  p. 
51,  n.  2. 

[427] 


416 


THE   LAW   OF   CONTRACTS. 


BOOK  III. 


made  by  the  auctioneer  at  the  time  of  the  sale,  (w)  And 
even  if  it  be  provided  in  the  terms  of  sale  that  any  error  or 
misstatement  in  the  description  shall  not  avoid  the  sale,  but 
be  allowed  for  in  the  price,  such  provision  will  not  cover  any 
misstatement  of  a  substantial  and  important  character ;  but 
the  purchaser  may,  on  that  ground,  rescind  the  sale,  {v) 
And  if  the  error  be  wholly  unintentional,  but  such  that  the 
amount  of  compensation  to  be  allowed  therefor  cannot  be 
exactly    calculated,    the    contract    may    be    rescinded,    (iv) 


(u)  Gunnis  v.  Erhart,  1  H.  Bl.  289 ; 
Bradshiiw  v.  Bennett,  5  C.  &  P.  48  ; 
Cannon  v.  Mitchell,  2  Des.  320 ;  Shel- 
ton  V.  Livius,  2  Cr.  &  Jer.  411  ;  Powell 
V.  Edmunds,  12  East,  6  ;  Ogilvie  y.  Fol- 
iambe,  3  Mer.  53  :  Kich  v.  Jackson,  4 
Bro.  C.  C.  514;  Wright  v.  Dekline, 
Peters,  C.  C.  199;  Kankiny.  Matthews, 
7  Ired.  286.  And  it  makes  no  differ- 
ence that  the  question  arises  on  a  sub- 
sale  of  the  same  premises  by  the  pur- 
chaser. Shclton  V.  Livius,  2  Cr.  &  Jer. 
411.  The  rule  applies  in  favor  of  the 
seller  as  well  as  the  purchaser.  Powell 
V.  Edmunds.  12  East,  6.  The  case  of 
Jones  V.  Edney,  3  Camp.  285,  is  not  at 
variance  with  the  rule  stated  in  the 
text.  That  was  a  case  of  a  sale  at  auc- 
tion of  the  lease  of  a  public  house.  The 
house  was  described  in  the  conditions 
of  sale  as  "  a  free  public  house ;  "  but  the 
lease  under  which  it  was  held  contained 
in  fact  a  proviso  that  the  lessee  and  his 
assigns  should  take  all  their  beer  from 
a  particular  brewery.  At  the  sale,  the 
auctioneer  read  over  the  whole  lease  in 
the  hearing  of  the  bidders,  and  when  he 
came  to  the  proviso,  being  asked  how 
the  house  could  be  called  ■'  a  free  pub- 
lic house,"  he  answered  :  "  That  clause 
has  been  done  away  with.  There  has 
been  a  trial  upon  it  before  Lord  Ellen- 
borough,  who  has  decided  it  to  be  bad. 
I  warrant  it  as  a  free  public  house,  and 
sell  it  as  such."  The  plaintiff  bid  off 
the  house  and  paid  a  deposit,  but  after- 
wards finding  that  the  clause  might  still 
be  enforced,  he  brought  this  action  to 
recover  the  deposit  back.  It  was  held 
that  he  was  entitled  to  recover.  _Lord 
Ellenborowjh  said :  —  "In  the  conditions 
of  sale  this  is  stated  to  be  '  a  free  pub- 
lic house.'  Had  the  auctioneer  after- 
wards verbally  contradicted  this,  I 
should  have  paid  very  little  attention  to 
what  he   said   from   his   pulpit.     Men 

[428] 


cannot  tell  what  contracts  they  enter 
into,  if  the  written  conditions  of  sale  arc 
to  be  controlled  by  the  babbie  of  the 
auction  room.  But  here  tlie  auctioneer 
at  the  time  of  the  sale  declared  that  he 
warranted  and  sold  this  as  a  free  public 
house.  Under  these  circumstances  a 
bidder  was  not  bound  to  attend  to  the 
clauses  of  the  lease  or  to  consider  their 
legal  operation" 

(y)  Uuke  of  Norfolk  r.  Worthy,  I 
Camp.  337  ;  Stewart  v.  Alliston,  1  Mer. 
2G  ;  Robinson  v.  Musgrove,  2  Moody  & 
Eob.  92 ;  Leach  v.  Mullet,  3  C.  &  P. 
115. 

(iv)  Dobcll  V.  Hutchinson,  3  Ad.  & 
El.  355.  This  was  a  sale  of  a  leasehold 
interest  of  lands,  described  in  the  parti- 
culars as  held  for  a  term  of  twenty-three 
years,  at  a  rent  of  £55,  and  as  compris- 
ing a  yard.  One  of  the  conditions 
was.  that  if  any  mistake  should  be  made 
in  the  description  of  the  property,  or 
any  other  error  whatever  should  ap- 
pear in  the  particulars  of  the  estate, 
such  mistake  or  error  should  not  annul 
or  vitiate  the  sale,  but  a  compensation 
should  be  made,  to  be  settled  by  arbi- 
tration. The  yard  was  not,  in  fact, 
comprehended  in  the  property  held  for 
the  term  at  £55.  but  was  held  by  the 
vendor  from  year  to  year,  at  an  addi- 
tional rent.  It  was  essential  to  the  en- 
joyment of  the  property  leased  for  the 
twenty-three  years.  It  did  not  appear 
that  the  vendor  knew  of  the  defect. 
The  court  held  that  this  defect  avoided 
the  sale,  and  was  not  a  mistake  to  be 
compensated  for  under  the  above  con- 
dition ;  although  after  the  day  named 
in  the  conditions  for  completing  the  pur- 
chase, and  before  action  brought  by  the 
vendee,  the  vendor  procured  a  lease  of 
the  yard  for  the  term  to  tiie  vendee,  and 
offered  it  to  him.  See  also  Mills  v, 
Oddy,  2  Crompt.  Mees.  &  Ros.  103. 


CH.   II.]  PUECHASE   AND    SALE   OP   REAL   PROPERTY.  417 

Wherever  there  is  any  material  mistake,  and  no  such  provi- 
sion respecting  it,  the  vendor  cannot  offer  a  pro  tanto  allow- 
ance, and  enforce  the  sale  against  the  purchaser.  And  these 
principles  would  hold  in  the  case  of  a  sale  not  at  auction,  so 
far  as  they  were  applicable,  {x) 

If  an  estate  be  sold  in  separate  lots,  and  one  person  buy 
many  lots,  there  is,  by  the  later  adjudications  and  the  better 
reasons,  a  distinct  contract  for  each  lot.  {y)  But  where  the 
contract  is  written  and  signed  for  the  purchase  of  several 
lots  at  one  aggregate  price,  it  is  one  contract;  and  this  is  so 
where  this  contract  was  subsequent  to  a  sale  of  the  same 
lots  severally  and  at  several  prices  to  the  same  purchaser,  (z) 
And  if  a  vendor  sell  an  estate  as  one  lot,  and  has  title  to  a 
part,  but  not  to  the  whole,  he  cannot  enforce  the  sale  ;  (a) 
but  if  he  sells  in  several  wholly  independent  lots,  it  would 
seem  reasonable  that  he  should  enforce  it  as  to  those  to  which 
he  could  make  title,  as  held  by  Lord  Brougham ;  [b)  but  we 
should  not  consider  the  lots  as  wholly  independent,  if  in  point 
of  fact  the  buying  of  them  all  was  for  any  reason  a  part 
of  the  inducement  or  motive  of  the  buyer  in  making  the 
purchase. 

There  has  been  much  question  whether  a  sale  at  auction 
might  be  avoided  by  the  purchaser,  because  by-bidders  or 
puffers  were  employed  by  the  owner  or  auctioneer.     The  pro- 

(a;)  Hibbert  D.   Shee,  1   Camp.  113;  v.   Guest,    1    Russ.   325;    Harwood   v. 

Robiuson  v.  Musgrovc,  2  Mood.  &  Kob.  Bland,  Flan.  &  Kcl.  540. 

92.  (a)  2  Story,  Eq.  Jur.  §  778  ;  Reed  v. 

(if)  This  was  expressly  held  in  Em-  Noe,  9  Yerg.  283 ;  Dalby  v.  Pullen,  3 
merson  i'.  Heelis,  2  Taunt.  38.  See  Sim.  29  ;  Bates  v.  Delavan,  5  Paige, 
also  James  v.  Shore,  1  Stark.  426.  The  300  ;  Johnson  v.  Johnson,  3  Bos.  &  Pul. 
contracts  are  separate,  both  in  law  and  162  ;  Parham  v.  Ilandolpb,  4  How. 
fact.  Id.;  Roots  v.  Lord  Dormer,  4  B.  (Miss.)  435.  But  if  the  part  to  which 
&  Ad.  77  ;  Baldey  v.  Parker,  2  B.  &  C.  the  seller  has  title  was  the  purchaser's 
•44,  Best,  J.;  Seaton  v.  Booth,  4  Ad.  &  principal  oliject,  or  equally  his  object 
El.  528 ;  Gibson  v.  Spurrier,  Peake's  with  the  other  part,  and  is  itself  an  in- 
Add.  Cas.  49  ;  Dykes  v.  Blake,  4  Bing.  dependent  subject,  and  not  likely  to  be 
N.  C.  463.  But  see  Van  Eps  v.  Sche-  injured  by  being  separated  from  the 
nectady,  12  Jolins.  436;  Stoddart  v.  other  part,  equity  will  compel  the  pur- 
Smith,  5  Binn.  355  ;  Waters  v.  Travis,  chaser  to  take  it  at  a  proportionate  price. 
9  Johns.  450.  See  McQueen  v.  Farquhar,  1 1  Ves.  467  ; 

(z)  Dykes  V.   Blake,  4   Bing.  N.  C.  Bowyer  v.  Bright,  13  Price,  698;  Buck 

463.     See  Chambers  v.  Griffiths,  1  Esp.  v.  McCaughtry,  5  Monroe,  230  ;  Simp- 

150;  Drewe  v.  Hanson,  6    Ves.  675;  son  y.  Hawkins,  1  Dana,  305;  Collard 

Hepburn  r.  Auld,   5  Cranch,  262  ;  Os-  v.  Groom,  2  J.  J.  Marsh.  488. 

borne  v.  Bremar,  1  Des.  486;  Casama-  (h)  Casamajor  v.  Strode,  2  Mv.  &  K. 

jor  r.  Strode,  2  Myl.  &  K.  724  ;  Lewin  706. 

[429] 


418*  THE   LAW   OF   CONTRACTS.  [bOOK   III. 

per  way  is  undoubtedly  to  give  notice  of  such  a  thing  at  the 
sale  ;  but  the  weight  of  authority  in  this  country,  as  well  as 
that  of  many  cases  in  England,  is  in  favor  of  permitting  an 
owner,  without  notice,  to  employ  a  person  to  bid  for  him,  if 
*  he  does  this  with  no  other  purpose  than  to  prevent  a  sacri- 
fice of  the  property  under  a  given  price,  (c)  It  must  be 
often  difficult,  however,  to  draw  the  line  between  an  honest 
procedure  of  this  sort  and  a  fraudulent  design.  It  is  cer- 
tain that  any  unfair  conduct  on  the  part  of  the  purchaser  in 
regard  to  his  purchase  prevents  his  acquiring  any  title  to  the 
goods,  (d) 

At  an  auction  the  contract  of  sale  is  not  completed  until 
the  auctioneer  knocks  the  property  down  to  the  purchaser ; 
for  he  is  the  agent  of  the  vendor,  and  this  is  his  assent  to  the 
offer  of  the  purchaser,  and  until  such  assent  be  given  the 
offer  may  be  withdrawn,  (e) 

If  an  auctioneer  does  not  disclose  the  name  of  the  owner  of 
the  property  which  he  sells,  he  is  himself  liable  to  an  action 
by  the  buyer  for  the  completion  of  the  contract.  (/)  And 
it  would  be  so  if  he  sold  or  warranted  without  authority,  {g') 
If  he  has  the  authority  of  the  owner  to  warrant,  and  does  so, 
disclosing  the  name  of  the  owner,  he  is  himself  exonerated 
from  the  warranty,  and  the  owner  is  liable  upon  it.  {//)  And 
he  has  such  special  property  in  the  goods  that  he  may  bring 
an  action  for  the  price,  even  if  the  goods  be  sold  in  the 
house  of  the  owner,  and  were  known  to  be  his.  (i)     But  the 

(c)  This  right,  provided  there  exist  ledge  r.  Grant,  4  Bing.  653.  If  the  bid 
no  actual  intention  to  defraud,  is  rccog-  he  retracted,  the  retraction  must  be 
nized  by  many  recent  authorities.  See  made  loud  enough  to  be  heard  by  the 
Latham  v.  Morrow,  6  B.  Monroe,  630 ;  auctioneer,  otherwise  it  amounts  to  no- 
National  Fire  Ins.  Co.  v.  Loomis,  11  thing.  Jones  r.  Nanney,  McCle.  39,  13 
Paige,  431 ;  Bowles  v.  Round,  5  Ves.  Price,  103. 

Jr.  508,  Sumner's  ed.  and  note  b.;  Crow-  (/)  Hanson  v.  Eobcrdeau,  Peake's 

der  V.  Austin,  3  Biug.  36S:  Veazie  v.  Cas.  120;  Franklyn  r.  Lamond,  4  C.  B. 

Williams,    3    Storv,    622 ;  Thornett   v.  637  ;    Mills  v.    Hunt,   20   Wend.    431  ; 

Haines,   15  M.  &  'W.  371  ;  Wheeler  v.  Jones  v.  Littledale,  6  Ad.  &  Ell.  486. 

Collier,  Mood.  &  Malk.  123:  Dart  on  {>/)  Sugd.  Law  of  Vendors,  10th  cd. 

Vend.  p.  89.     Contra,  Towle  ?•.  Leavitt,  vol.  1,  p.  70;  Jones  v.  Dyke,  Id.  vol.  3, 

3  Foster,  360;  Pennock's   Appeal,   14  App.  8;    Gaby  v.  Driver,  2  Y.  &  Jer. 

Penn.  446 ;  Staines  I'.  Shore,  16  Pcnn.  549. 

200.  (h)  An  auctioneer  in  such  case  is  like 

(d)  Fuller  v.  Abrahams,  6  Moore,  any  otiier  agent,  and,  unless  he  acts  be- 
316,  3  Brod.  &  Biug.  116:  Smith  ?•.  yond  liis  authority,  binds  his  principal, 
Greenlee,  2  Dev.  126.  but  not  himself. 

(e)  Painei'.  Cave,  3T.R.  148:  Bout-         (0  Williams  v.  Millingtoii,  1  H.  Bl. 

[430] 


CH.  II.]    PURCHASE  AND  SALE  OF  REAL  PROPERTY. 


M19 


buyer  may  set  off  a  debt  d  ue  to  him  from  the  owner,  {j  )  And 
if  the  auctioneer  sell  the  property  of  A.  as  the  property  of  B., 
and  the  buyer  pay  the  price  to  B.,  the  auctioneer  cannot 
•recover  it  of  the  buyer.  (A;)  It  is  said  that  after  the  sale  is 
finished  the  auctioneer  is  no  longer  the  agent  of  the  owner, 
and  a  payment  to  him  of  the  price  is  not  a  payment  to  the 
owner.  (/)     But  where  the  auctioneer,  by  usage,  or  on  other 


81  ;  Coppin  v.  Walker,  7  Taunt.  237, 
But  where  the  person  employing  the 
auctioneer  to  sell  has  no  right  so  to  do, 
the  auctioneer  has  no  claim  upon  the 
property  against  the  rightful  owner,  und 
the  purchaser  may  refuse  to  pay  the 
auctioneer.  Dickenson  v.  Naule,  1  Nev. 
&  Man.  721. 

( ;■)  Coppin  v.  Craig,  7  Taunt.  243. 

(k)  Coppin  V.  Walker,  7  Taunt.  237. 

(/)  Sykes  v.  Giles,  .5  M.  &  W.  645. 
In  this  case  the  plaintiff  having  employ- 
ed an  auctioneer  to  sell  certain  timber 
growing  on  his  estate,  the  following, 
amongst  other  conditions,  were  read  at 
the  sale,  in  the  presence  of  the  defend- 
ant:—  "That  each  purchaser  should 
pay  down  a  deposit  of  £10  per  cent,  in 
part  of  the  purchase-money,  and  pay  the 
remainder  on  or  before  the  17th  of  Au- 
gust; but  in  case  any  purchaser  should 
prefer  to  pay  the  whole  amount  of  his 
purchase-money  at  an  earlier  period, 
discount  after  the  rate  of  £5  per  cent, 
will  be  allowed."  Also,  "  that  each 
purchaser  shall  enter  into  a  proper 
agreement  and  bond,  if  required,  with 
such  one,  two,  or  more  sureties  as  shall 
be  approved  by  the  vendor  or  his  agent, 
for  the  performance  of  his  agreement, 
pursuant  to  the  above  conditions."  The 
defendant  became  the  purchaser  of  one 
lot,  and  paid  the  deposit.  Some  days 
after  the  sale,  which  was  on  the  14th  of 
February,  the  defendant,  at  the  auc- 
tioneer's request,  drew  a  bill  of  exchange 
for  the  residue  of  the  purchase  money, 
dated  on  the  day  of  the  sale,  on  one  J. 
M.,  payable  six  months  after  date  to  his 
own  order,  and  indorsed  it  to  the  auc- 
tioneer, who,  being  in  difficulties,  in- 
dorsed it  to  a  third  person,  to  whom  he 
was  indebted  on  his  own  account.  The 
bill  became  due  on  the  17th  of  August, 
when  the  amount  of  it  was  duly  paid  to 
the  holder.  It  was  never  transferred  to 
the  plaintiff.  H(kl  that,  under  these 
circumstances,  the  delivery  and  pay- 
ment of  the  bill  of  exchange  was  nota 


valid  payment  of  the  residue  of  the  pur- 
chase-money for  the  timber  purchased 
by  the  defendant,  the  auctioneer  having 
no  authority  to  receive  payment  of  such 
residue,  or  to  take  any  security  for  the 
payment  of  it;  but  that  even  if  he  were 
authorized  by  the  conditions  to  receive 
payment,  the  payment  required  was  a 
payment  in  cash,  and  he  had  no  author- 
ity to  take  a  bill  of  exchange.  Parke, 
B. :  —  "The  question  here  is,  what  au- 
thority the  auctioneer  had.  The  extent 
of  that  authority,  in  the  absence  of  any 
proof  of  general  authority,  must  depend 
upon  the  conditions  of  sale.  The  only 
authority  given  to  the  auctioneer  by  these 
conditions  is,  to  receive  the  deposit  mo- 
ney; the  vendor  reserves  to  himself  or 
his  agent  the  power  to  receive  the  re- 
mainder of  the  purchase-money.  As 
no  agent  is  named  for  that  purpose,  the 
payment  must  be  to  the  principal,  or 
some  general  agent,  which  the  auc- 
tioneer certainly  was  not ;  for  the  word 
'agent'  in  the  sixth  condition  clearly 
does  not  refer  to  him.  By  the  third 
condition  the  remainder  of  the  money 
is  to  be  paid  on  or  before  the  17  th  of 
August,  but  such  payment  is  not  to  be 
to  the  auctioneer,  but  the  vendor.  Then 
that  part  of  the  condition  which  pro- 
vides that  the  purchaser  may,  if  he  shall 
prefer  it,  pay  the  whole  money  at  an 
earlier  period,  must  also  he  construed  to 
mean  that  he  shall  pay  it  to  the  same 
person,  that  is,  the  vendor  or  his  agent. 
But  even  if  the  auctioneer  had  had  au- 
thority to  receive  the  remainder  of  the 
purchase  money,  he  had  no  authority  to 
receive  it  in  this  way  by  means  of  a  bill 
of  exchange.  Cash  payment  was  in- 
tended, and  not  a  bill  of  exchange. 
My  opinion,  however,  is,  that,  under 
the  terms  of  the  conditions  of  sale,  the 
vendor  is  to  receive  the  purchase-mo- 
nej',  and  not  the  auctioneer.  The  gene- 
ral rule  may  be  different,  but  this  case 
turns  on  this  peculiar  construction  of 
the  conditions  of  sale." 

[431] 


420*  THE  LAW   OF   CONTRACTS.  [BOOK  III. 

evidence,  can  be  shown  to  have  authority  to  receive  the 
money,  such  payment  must  discharge  the  buyer,  (m)  It  is 
the  duty  of  the  auctioneer  to  obtain  the  best  price  he  fairly 
*  can ;  to  comply  with  his  instructions,  unless  they  would 
operate  a  fraud ;  to  pursue  the  accustomed  course  of  business, 
and  to  possess  a  competent  degree  of  skill ;  and  if  he  fail 
in  either  of  these  particulars,  and  damage  ensues  to  the 
owner,  he  is  responsible  therefor,  (w) 

In  the  preceding  remarks  we  have  given  the  rules  of  law 
applicable  to  auction  sales  of  personal  as  well  as  of  real  pro- 
perty. They  are  the  same  in  both  cases,  except  so  far  as 
they  are  necessarily  distinguished  by  the  nature  of  the  pro- 
perty sold. 

(m)  See  Capel  v.  Thornton,  3  Car.  &  (n)  Sec  Guerreiro  v.  Peile,  3   B.  & 
Pay.  352;  Bunney  v.  Payntz,  4  B.  &  Aid.   616;  Bexwell   v.    Christie,   Cow- 
Ad.  568.     The  case  of  Sykes  v.  Giles,  per,  395 ;  Eussell  v.  Palmer,  2  Wilson, 
above  cited,  does  not  impugn  this  rule,  325. 
but  turned  upon  the  special  conditions 
of  the  sale. 

[432] 


CH.   III.  HIRING   OF   REAL  PROPERTY.  421 


CHAPTER  III. 

HIRING    OF   REAL  PROPERTY. 

Sect.  I. —  Of  the  Lease. 
t- 

The  hiring  of  real  property  is  usually  effected  by  means 
of  a  lease,  which  is  a  contract,  whereby  one  party  —  the 
tenant  —  has  the  possession  and  profits  of  the  land,  and  the 
other  party — the  landlord — reserves  a  rent,  which  the  tenant 
pays  him  by  way  of  compensation. 

It  is  frequently  a  question  whether  an  instrument  is  a  lease 
at  once,  or  only  an  agreement  to  make  a  lease  hereafter ;  and 
if  a  lease,  when  by  its  terms  it  is  to  begin,  and  when  to  end ; 
and  whether  the  tenancy  is  for  years,  or  from  year  to  year, 
or  at  will,  or  upon  sufferance.  But  these  questions  are  pro- 
perly questions  of  construction,  and  so  far  as  they  come  with- 
in the  scope  of  this  work  will  be  considered  hereafter,  when 
we  treat  of  Construction,  and  of  the  Statute  of  Frauds,  in 
our  second  volume. 

Any  general  description  will  suffice  to  pass  the  demised 
premises,  if  it  be  capable  of  distinct  ascertainment  and 
identification.  And  certain  words,  usually  employed,  as 
house,  farm,  land,  and  the  like,  have,  if  necessary,  a  very 
wide  meaning,  (o)  And  where  such  general  and  compre- 
hensive terms  are  employed,  all  things  usually  comprehended 
within  the  meaning  thereof  will  pass,  unless  the  circum- 
stances of  the  case  show  very  clearly  that  the  intention  of 
the  parties  was  otherwise,  {p)  And  inaccuracies  as  to 
qualities,  .  names,  amounts,  &c.,  will  be  rejected,  if  there 
be  enough  to  make  the  purposes  and  intentions  of  the  par- 
ties  certain,  {q)      So  the   granting   for  hire,  of  a  thing  to 

(o)  1  Shep.  Touch.  90  -  92.  (9)  Miller  v.  Travers,  1  M.  &  Sc.  342, 

(p)  Doei;.  P>iiit,l  T.  R.  701  ;  Bryan  351;  Blague  v.  Gold,  Cro.   Car.  473; 

V.    Wetherhcad,    Cro.    Car.    17;    Gen-  Mason    v.    Chambers,    Cro.    Jac.    34; 

nings  V.  Lake,   Id.   1G8  ;   Kerslake  v.  Wrotesley  v.  Adams,  Plowd.  187,  191 ; 

White,  2  Stark.  508  ;  Ongley  v.  Cham-  Windham  v.  Windham,  Dyer,  376,  b ; 

bers,  1  Bing.  483,  496.  Goodtitle  v.  Southern,  1  M.  &  S.  299 ; 

VOL.  I.                                  37  [-433-] 


422  THE   LAW   OF    CONTRACTS.  [BOOK   III. 

be  used,  carries  with  it  all  proper  appurtenances  and  accom- 
paniments which  are  needed  for  the  proper  use  and  enjoy- 
ment of  the  thing,  (r) 


SECTION  II. 
OF   THE   GENERAL   LIABILITIES   OF    THE   LESSOR. 

There  is  an  implied  covenant  on  the  part  of  the  lessor  to 
put  the  lessee  into  possession,  and  that  he  shall  quietly  en- 
joy, (s)  But  unless  the  demise  be  under  seal  there  is  no  im- 
plied covenant  for  good  title,  but  only  for  quiet  enjoy- 
ment, [ss)  He  is  not  bound  to  renew,  without  express 
covenant,  (t)  nor  are  such  covenants  favored,  if  they  tend  to 
perpetuity,  (w)  but  where  they  are  definite  and  reasonable 
the  law  sustains  them,  (v)  A  covenant  to  "  renew  under  the 
same  covenants  "  is  satisfied  by  a  renewal  which  omits  the 
covenant  to  renew,  {w)  But  a  covenant  to  reneiv  implies  a 
renevk'-al  for  the  same  term  and  rent,  and,  probably,  on  the 
same  conditions  as  before,  excepting  only  the  covenant  to  re- 
new ;  but  if  it  be  "  to  renew  on  such  terms  as  may  be  agreed 
upon,"  this  is  void  for  uncertainty,  [x) 

A  landlord  is  under  no  implied  legal  obligation  to  repair, 
nor  will  the  uninhabitableness  of  a  house  be  a  good  defence 
to  an  action  for  rent,  {y)  And  if  he  expressly  covenanted  to 
repair,  the  tenant  cannot  quit  and  discharge  himself  of  the 

Doe  V.  Galloway,  5  B.  &  Ad.  43  ;  Pim  Ves.  295  ;  Att'y-Geueral  v.  Brooke,  18 

V.  Curell,  6  M.  &  W.  234,  269.  Ves.  319,  326. 

(r)   Shep.  Touch.  89  ;  Morris  r.  Edg-  (y)  Furnival    v.   Crew,   3  Atk.    83; 

ington,  3  Taunt.  24,  31 ;  Kooystra  r.  Cooke  v.  Booth,  Cowp.  819  ;  Willan  v. 

Lucas,  5  B.  &  Aid.  830;  Harding  v.  Willan,  16  Ves.  72,  84. 

Wilson,  2  B.  &  C.  96.  (w)  Carr  v.  Ellison,  20  Wend.  178. 

(s)  Line  v.  Stephenson,  4  Bing.  N.  See  also  Abeel  v.  Radcliff,  13  Johns. 
C.  678,  5  Id.  183;  Holden  v.  Taylor,  297.  But  see,  contrii,  Bridges  v.  Hitch- 
Hob.  12  ;  Hacket  v.  Glover,  10  Mod.  cock,  1  Bro.  P.  C.  522. 
142;  Shep.  Touch.  165  ;  Nokes's  Case,  (.r)  Kutgers  v.  Hunter,  6  Johns.  Ch. 
4  Co.  80  b. — Assumpsit  lies  against  a  215;  Whitlock  v.  Duffield,  1  lloff.  Ch. 
landlord  on  his  implied  promise  to  give  110  :  Tracy  v.  Albany  Exchange  Co.,  3 
possession.     Coe  i'.  Clay,  3  M.  &  P.  57.  Selden,  472. 

{ss)  Bandy  v.  Cartwright,  20  E.  L.  (ij)  Arden    r.   Pullen,    10  M.   &  W. 

&E.  374.  321  ;    Hart  v.  Windsor.    12   M.  &  W. 

{t)  Lee  V.  Vernon,  7  Bro.  P.  C  432;  68;  Izou  v.  Gorton,  5  Bing.  N.  C.  501 ; 

Eobertson  v.  St.  John,  2  Bro.  C.  C.  Gott  v.   Gandv,   22  E.  L.  &  E.  173; 

140.  Moffat  V.  Smfth,   4   Corns.  126.     The 

(m)  Baynham  v.   Guy's   Hospital,  3  cases  contra,  as  Collins  v.  Barrow,  1  M. 

[434] 


CH.   III.]  HIRING   OF  REAL  PROPERTY.  *423 

rent  because  the  repairs  are  not  made,  unless  there  is  a  pro- 
vision to  that  effect.  (~)  And  if  a  landlord  is  bound  by  cus- 
tom or  by  express  agreement  to  repair,  this  obligation,  and 
the  obligation  *  of  the  tenant  to  pay  rent,  are,  it  seems,  inde- 
pendent of  each  other,  so  that  the  refusal  or  neglect  of  the 
landlord  to  repair  is  no  answer  to  a  demand  for  rent,  (a)  It 
would  seem  from  the  authorities  above  cited,  to  be  the  law  in 
England,  that  a  tenant  is  justified  in  avoiding  his  lease,  only 
by  a  positive  wrong  on  the  part  of  his  landlord  ;  as  by  erro- 
neous or  fraudulent  misdescription  of  the  premises  or  their 
being  made  uninhabitable  by  the  landlord,  (b) 


SECTION  ni. 

OF  THE   GENERAL   LIABILITY  AND   OBLIGATION   OF    THE   TENANT. 

The  words  "reserving,"  or  "yielding,"  or  "paying"  a 
rent,  or  any  phraseology  distinctly  showing  the  intention  of 
the  parties  that  rent  should  be  paid,  imply  a  covenant  or  pro- 
mise on  the  part  of  the  lessee  to  pay  the  same,  although  the 
words  import  no  promise.  And  he  is  liable  to  an  action 
either  for  non-payment  of  rent,  or  for  refusing  to  take  pos- 
session, (c)  He  is  not  bound  to  pay  the  taxes,  unless  he 
agrees  to  ;  but  the  agreement  may  be  indirect  and  construct- 
ive ;  as  if  he  agrees  to  pay  the  rent,  "  free  from  all  taxes, 
charges,  or  impositions,"  (d)  or  even  to  pay  "  a  net  rent;"  (e) 
or  any  other  language  is  used,  distinctly  showing  that  this 
burden  was  to  be  cast  upon  the  tenant. 

6  Rob.  112  ;  Edwards  v.  Etherington,     W.  52:  Arden  v.  PuUcn,  10  M.  &  W. 

7  D.  &  E.  117  ;  Salisbury  v.  Marshall,     321. 

4  C.  &  P.  65,  seem  to  be  overruled.  (c)  Sec  Piatt  on  Covenants,  50.   The 

(s)  Surplice  v.  Parnsworth,  7  M.  &  learned  author  of  this   treatise   main- 

Gr.  57G.  tains,  however,  with   great  ability  and 

(a)  Bro.  Abr.,  Dette,  pi.  18  ;  27  H.  6,  learning,  that  an  action  of  covenant  will 

10  a,  pi.   6.     See  also   the   reporter's  lie  in  such  case  only  when  the  lease  is 

learned  note  to  Surplice  v.  Farnsworth,  made  by  indenture  executed  by  the  les- 

wherc  this  case,  and  others  to  this  point  see. 

from  the   Year  Books,   are   given   in  (d)  Bradbury  v.  Wright,  Doug.  G24. 

full.  But   sec,    contra,    Cranston   v.    Clarke, 

(h)   See   Surplice   v.   Farnsworth,    7  Saycr,  78. 

M.  &  Gr.  576  ;  Hart  v.  Windsor,  12  M.  («)  Bennett  v.    Womack,  3    C.  &  P. 

&  W.  68;    Sutton  v.  Temple,  12  M.  &  96,  7  B.  &  C  627. 

[435] 


424*  THE   LAW   OP   CONTRACTS.  [BOOK   III. 

The  time  when  the  rent  is  due  depends  upon  the  terms  of 
the  contract ;  and,  if  this  were  silent,  the  time  would  depend 
upon  statutory  provision,  if  any  there  were,  and  in  the 
absence  of  such  provision,  upon  the  usage  of  the  country, 
*  Whenever  it  is  due,  if  no  place  of  payment  is  fixed  by  the 
contract  and  there  is  a  clause  of  reentry  and  forfeiture  in 
case  of  non-payment,  a  readiness  to  pay  upon  the  land  would 
be  necessary  to  prevent  a  forfeiture,  and  as  the  law  could  not 
in  such  a  case  compel  a  tenant  to  seek  the  landlord  off  the 
land  to  pay  the  rent  and  at  the  same  time  be  ready  upon  the 
land  with  the  money  to  prevent  a  forfeiture,  it  would  seem 
that  a  readiness  to  pay  upon  the  land  would  also  be  a  good 
plea  of  tender  in  an  action  for  the  rent  (/)  although  the  ten- 
ant might,  if  he  chose,  make  a  personal  tender  which  would 
be  good,  [ff)  But  we  hold,  with  the  latest  English  authority, 
that  if  there  be  no  clause  of  forfeiture  in  the  lease  the  tenant 
must  seek  the  landlord  and  tender  the  rent  as  in  other  cases, 
in  order  to  prevent  the  landlord  from  recovering  the  costs  of 
an  action  ;  [g)  although  the  American  cases  lead  to  a  different 
conclusion,  {gg)  And  a  tender  of  rent  on  the  day  it  fell 
due,  although  at  a  late  hour  in  the  evening,  has  been  held 
good,  (/i) 

A  tenant  is  not  bound  to  make  general  repairs,  without  an 
express  agreement.  But  he  must  make  such  repairs  as  are 
made  necessary  by  his  use  of  the  house,  and  are  required  to 
keep  the  premises  in  tenantable  condition.  And  even  if  an 
accident  occur  without  his  having  any  thing  to  do  with  it? 
as  if  a  window  were  broken,  or  slates  cast  from  the  roof,  he 
must  repair,  if  serious  injury  will  obviously  result  in  case  the 
accident  be  left  without  repair,  [hh)  In  general,  an  outgoing 
tenant  must  leave  the  premises  wind  and  water  tight,  but  is 
not  bound  to  any  ornamental  repair,  as  painting,  papering, 
&c.,  although  so  broad  a  covenant  on  his  part  as  "  to  leave 
the  premises  in  good  and  sufficient  repair,  order,  and  con- 


(/)  Haldane  v.  Johnson,  20  E.  L.  &  (gg)  Hunter  v.  Le  Conte,  6  Cow.  728 ; 

E.  498.          .  Walter  v.  Dewey,  16  Johns.  222. 

(//)  Hunter  v.  Le  Conte,  6  Cow.  728.  (A)  Thomas  v.  Hayden,  cited  in  Per- 

(g)  Haldane  v.  Johnson,  20  E.  L.  &  kins  v.  Dana,  19  Verm.  589. 

E.  498.  •  (M)  Ferguson  r. ,  2Esp.  590; 

[436] 


CH.  III.]  HIRING   OF  BEAL  PROPERTY.  *425 

ditiori,"  might  cover,  these  repairs,  (i)  But  if  he  expressly 
agrees  to  keep  the  premises  in  repair,  and  deliver  them  up  in 
good  repair,  he  is  not  justified  in  permitting  them  to  remain 
out  of  repair  by  the  fact  that  they  were  so  when  he  received 
them,  (j)  If  there  be  an  express  and  unconditional  agree- 
ment to  repair,  or  to  redeliver  in  good  order,  or  to  keep  in 
good  repair,  the  tenant  is  bound  to  do  this,  even  though  the 
premises  are  destroyed  by  fire,  so  that  he  is  in  fact  compelled 
to  rebuild  them,  (k)  but  not  if  destroyed  by  the  act  of  God 
or  the  public  enemies,  (kk)  Where  the  tenant  *  contracts  to 
repair,  there  is  no  implied  promise  to  use  premises  in  a  ten- 
ant-like manner,  (/)  but  such  tenant  is  liable  to  third  parties 
for  damages  resulting  from  the  ruinous  state  of  the  premises  ; 
and  the  landlord  is  not,  if  the  premises  were  in  good  order 
when  leased,  (m)  But  the  tenant  is  not  made  liable  by  this 
agreement  for  acts  done  before  the  execution  of  the  indenture, 
although  its  habendum  states  that  the  premises  are  to  be  held 
from  a  day  prior  to  the  day  of  the  execution.  («)  And  an 
under-lessee,  with  covenants  to  repair,  is  liable  to  his  imme- 
diate landlord,  only  for  such  damages  as  result  directly  from 
the  breach  of  his  own  contract ;  and  not  for  such  as  the 
owner  may  recover  from  the  mesne  landlord,  (o) 

The  tenant  of  a  farm  is  bound,  without  express  cove- 
Gibson  V.  Wells,  4  B.  &  P.  290  ;  Pom-  Id.  See  also  Mantz  v.  Goring,  -t  Bing, 
fret;;.  Ricroft,  I  Wms.  Saund.  323,  b,  N.  C.  451 ;  Burdett  y.  Withers,  7  Ad.  & 
n.  7  ;  Horsefall  v.  Mather,  Holt,  N.  P.  El.  36 ;  Belcher  v.  Mcintosh,  2  M.  &  E. 
7  ;  Auworth  v.  Johnson,  5  C.  &  P.  239  ;  186. 
Torriario  v.  Young,  6  C.  &  P.  8.  (Ic)  40  Ed.  3,  6,  pi.  11  ;  Paradinc  v. 

(i)  Wise  V.  Metcaif,  10  B.  &  C.  312.  Jane,  Aleyn,  27;  Bullock  v.  Dommitt, 
But  a  declaration  stating  that  in  con-  6  T.  R.  G50 :  Brecknock  Canal  Co.  v. 
sideration  that  the  defendant  had  he-  Pritchard,  6  T.  R.  750;  7w  re  Skingley, 
come  tenant  to  the  plaintiff  of  a  farm,  3  E.  L.  &  E.  91 ;  Allen  v.  Culver,  3 
the  defendant  undertook  to  make  a  cer-  Denio,  284  ;  Spence  v.  Chodwick,  10 
tain  quantity  of  fallow,  and  to  spend  Q.  B.  517,  530:  Phillips  v.  Stevens,  16 
£60  worth  of  manure  every  year  there-  Mass.  238 ;  Fowler  v.  Bott,  6  Mass.  63. 
on,  and  to  keep  the  buildings  in  repair,  (kk)  Bayly  v.  Lawrence,  1  Bay, 
was  held  bad  on  general  demurrer ;  499 ;  Pollard  v.  Shaaflfer,  1  Dallas, 
those  obligations  not  arising  out  of  the  210.  See  Proctor  v.  Keith,  12  B.  Mon. 
bare  relation  of  landlord  and   tenant.     252. 

Brown  v.  Crump,  1   Marsh.  567.     See         (/)  Standen  v.  Chrinnas,  10  Q.  B.  35. 
also  Granger  v.   Collins,    6  M.  &  W.         (?«)  Bears  r.  Ambler,  9  Barr,  193. 
458;  Jackson  v.   Cobbin,   8  M.  &  W.         (n)  Shaw  v.  Kay,  1  Exch.  412. 
790.  (o)  Logan    v.  Hall,   4    C.   B.    598; 

0')  Payne  v.  Ilainc,  16  M.  &  W.  541.  Walker  r.  Hatton,  10  M.  &  W.  249; 
But  the  age  and  character  of  the  pre-  Penley  v.  Watts,  7  M.  &  W.  601.  But 
mises  must  be  considered  in  deter-  see  conlrd,  Nealc  v.  Wyllie,  3  B.  &  G. 
mining  the  proper  extent  of  the  repairs.     533. 

37*  [437] 


426*  THE   LAW   or   contracts.  [book   III. 

nants,  to  manage  and  cultivate  the  same  in  such  manner  as 
may  be  required  by  good  husbandry  and  the  usual  course  of 
management  of  such  farms  in  that  vicinity.  And  if  he  fails 
to  do  so,  assumpsit  may  be  maintained  on  the  breach  of  the 
implied  promise,  (p) 

It  is  no  answer  to  a  demand  for  rent  that  the  premises  are 
not  in  a  fit  and  proper  state  and  condition  for  the  purposes 
for  which  they  are  hired,  (q)  If,  therefore,  the  premises  are 
burned  down,  and  the  tenant  is  under  no  obligation  to 
rebuild,  (not  having  agreed  to  keep  in  repair,)  or  are  de- 
stroyed by  the  act  of  God  or  the  public  enemies,  yet  he  is 
bound  to  pay  rent  thereafter,  (gq)  unless,  as  is  now  frequently 
done  in  this  country,  the  lease  contains  a  provision,  that  the 
rent  shall  cease  or  proportionally  abate  while  the  premises  re- 
main wholly  or  in  part  unfit  for  use. 

In  the  absence  of  express  agreement  to  repair,  the  lessee 
*is  not  bound  to  rebuild  a  house,  which  has  been  burned 
through  the  negligence  and  folly  of  his  own  servants,  (r) 

A  lessee  may  assign  over  the  whole  or  a  part  of  his  terra 
in  the  premises.  If  he  parts  with  the  whole  of  his  interest  it 
is  an  assignment ;  if  with  less  than  the  whole  it  is  an  under- 
leasing, leaving  a  reversion  in  the  original  lessee.  An  under- 
lease is  not  a  breach  of  a  covenant  "  not  to  assign,  transfer, 
or  set  over"  the  premises,  or  the  lease,  or  the  interest  or 
estate  of  the  lessee  ;  (5)  but  if  there  be  added  to  the  covenant 

(p)  Powley  V.  Walker,  5  T.  E.  373  ;  ner  r.  White,  4  H.  &  J.  546  ;  Redding 

Beale  v.  Sanders,  3  Bing.  N.  C.  850 ;  v.  Hall,  1  Bibb,  536. 
Brown  v.   Crump,  1  Marsh.  567.     See         (r)  McKenzie  v.  MeLeod,   10  Bing. 

also  Wigglesworth  v.  Dallison,  Doug.  385. 

201 ;  Legh  v.  Hewitt,  4  East,  154;  Se-         (s)  Crusoe  v.  Bugby,  2  W.  Bl.  766, 

nior   V.   Armytage,   Holt,   N.   P.    197;  3  Wils.  234 ;  Kinnersley  r.  Orpe,  Doug. 

Gough  y.  Howard,  Pcake's  Add.   Cas.  56;    Church   v.   Brown,    15    Ves.   258, 

197  ;  Dalby  v.  Hirst,  1  Br.  &  Bing.  224,  265.  —  But  a  covenant  against  nnderlet- 

3  Mooi-e,  536  ;  Angerstein  v.  Haudson,  ting  will  restrain  the  alienation  by  as- 
1  C.  M.  &  R.  789  ;  Hutton  v.  Warren,  signment.  Greenaway  y.  Adams,  12  Ves. 
1  M.  &  W.  466  ;  Hallifax  v.  Chambers,  395.  —  Letting  lodgings  is  not  a  breach 

4  M.  &  W.  662 ;  Lewis  v.  Jones,  17  of  covenant  not  to  underlet.  Doe  c?. 
Penn.  262.  Pitt  v.  Laming,  4  Camp.  73.  —  And  an 

[q)  Hart  V.  Windsor,  12   M.  &  W.  assignment  by  operation  of  law  is  no 

68 ;  Surplice  v.  Parnsworth,  7  M.  &  Gr.  breach  of  a  covenant  not  to  assign  ;  as 

576 ;  Harrison  v.   Lord   North,    1    Ch.  in   case   of  bankruptcy,   or   where  the 

Cas.  S3.  term  is  taken  on   execution   by  a  cre- 

[qq)   Pollard  v.   Shaaffer,    1  Dallas,  ditor.     Doe  i-.  Carter,  8  T.  R.  57.    But 

210;  Niedelet  v.  Wales,    16  Missouri,  it  is  otherwise  if  the  assignment  is  the 

214  ;  Powler  v.  Bott,  6  Mass.  62;  Le-  voluntary  act  of  the  tenant.   Doe  v.  Car- 

mott  V.  Skerrett,  1  Har.  &  J.  42 ;  Wag-  ter,  8  T.  R.  57,  300 ;  Doe  v.  Hawke,  2 

[438J 


CH.   III.]  HIRING   OF  REAL   PROPERTY.  *427 

the  words  "  or  any  part  thereof,"  it  is  equally  a  breach,  to 
underlet  or  to  assign.  By  such  breach  the  original  lessee 
becomes  liable  for  damages  ;  but  the  lease  is  not  terminated, 
or  the  interest  of  the  sub-lessee  destroyed,  unless  the  original 
lease  is  made  on  condition  that  there  shall  be  no  assignment, 
nor  underleasing,  or  provides  that  the  original  lessor  may, 
upon  any  assignment  or  underleasing,  enter  and  expel  the 
lessee  or  his  assigns,  and  terminate  the  lease. 

A  distinction  formerly  prevailed  between  a  proviso  declar- 
ing that  the  lease  should  be  void  on  a  specified  event,  and  a 
proviso  enabling  the  lessor  to  determine  it  by  reentry  ;  and  it 
was  held  that  in  the  former  case  the  lease  became  abso- 
lutely void  on  the  event  named,  and  was  incapable  of  being 
restored  by  acceptance  of  rent,  or  other  act  of  intended  con- 
firmation ;  while  in  the  latter,  some  act,  such  as  entry  or 
claim,  must  have  ]^een  performed  by  the  lessor  to  manifest 
his  intention  to  end  the  demise,  which  was  voidable  in  the 
interval,  and  consequently  confirmable.  This  distinction, 
however,  is  now  exploded  ;  and  it  is  held  that  the  lease  is 
*  voidable  only  at  the  election  of  the  lessor,  but  not  of  the 
lessee,  though  the  proviso  expressly  declare  that  it  shall  be 
void,  [t)  And  any  act  will  be  a  waiver  of  the  forfeiture, 
which  is  a  distinct  and  voluntary  recognition  of  the  lease  by 
the  lessor,  with  a  full  knowledge  of  the  forfeiture  ;  as  by 
taking  rent.  &c.  (m)  "Whether  a  mere  demand  of  subsequent 
rent  is  a  waiver  is  not  so  certain,  [v)  A  waiver  of  the  for- 
feiture for  one  breach  does  not  prevent  the  lessor  from  in- 
sisting on  the  forfeiture  for  another,  [iv)  The  sub-lessee  is  not 
liable  to  the  original  lessor,  there  being  no  privity  between 

East,  481.    It  would  seem,  therefore,  nant,  2d  ed.  p.  322,  where  this  point  is 

that  taking  the  benefit  of  an  insolvent  fully  considered,  and  cases  cited, 

law  would  be  a  breach  of  the  covenant.  («)  Roe  d.  Gregson  v.  Harrison,  2  T. 

See  Shee  v.  Hale,  13  Ves.  404.     And  if  R.  425 ;  Doe  d.  Nash  v.  Birch,  1  M.  & 

the  lease  be  made  subject  to  a  condi-  W.  402 ;  Doe  d.  Gatehouse  v.  Rees,  4 

tion  that  the  premises  shall  be  actually  Bing.  N.  C.  384  ;  Arnsby  v.  Woodward, 

occupied  by  the  lessee,  the  lease  will  of  6  B.  &  C.  519  ;  Harvic  v.  Oswel,  Cro. 

course  determine  whenever  the  condi-  Eliz.  572 :  Goodright  (/.  Walter  v.  Da- 

tion  is  broken,  whether  it  be  by  the  vo-  vids,  Cowp.  803. 

luutary  act  of  the  party  or  by  operation  (v)  Doe  d.  Nash  v.  Birch,  1  JI.  &  W. 

of  law.    Doe  v.  Clarke,  8  East,  185.  406. 

(it?)  Doe    d.  Boscawen    v.   Bliss,  4 

(<)  See  Piatt  on  Leases,  vol.  2,  p.  Taunt.  735 ;  Doe  d.  Ambler  v.  Wood- 

327,  and  Taylor  on  Landlord  and  Te-  bridge,  9  B.  &,  C.  376. 

[439] 


428  *  THE   LAW   OF   CONTRACTS.  [BOOK  III. 

them.  But  if  the  whole  term  and  interest  be  assigned  by 
the  termor,  the  assignee  —  who  is  not  a  sub-lessee,  as  there 
is  no  reversion  in  the  termor, — is  now  liable  to  the  original 
lessor  for  rent,  by  reason  of  his  privity  of  estate,  (x) 

Where  the  letting  is  in  the  alternative,  as  for  two,  four,  or 
eight  years,  the  tenant  may  determine  the  tenancy  at  either 
of  these  periods  by  a  proper  notice,  unless  it  be  otherwise  ex- 
pressly agreed,  (t/) 

A  tenant  may  not  dispute  his  landlord's  title;  for  he  is 
estopped  from  changing,  by  his  own  act,  the  character  and 
effect  of  his  tenure,  (c)  And  wherever  a  tenant  disclaims 
his  tenure,  or  denies  his  landlord's  title,  or  claims  adversely 
to  him,  or  attorns  to  another  as  having  title  against  him,  he 
forfeits  his  estate.  The  landlord  may  enter  at  once,  and 
bring  ejectment  for  the  forfeiture.  But  this  is  a  disclaimer 
*  of  the  lease  by  the  landlord,  who  cannot  tliereafter  take  any 
advantage  from  the  tenancy,  (a)  But  a  disclaimer  by  a 
tenant  will  work  a  forfeiture  only  when  it  amounts  to  a  re- 
nunciation of  his  character  as  a  tenant,  which  may  be  either 
by  setting  up  a  title  in  another  or  claiming  title  in  him- 
self, (aa)  A  refusal  to  pay  rent,  together  with  a  request  for 
further  information  as  to  the  landlord's  title,  or  a  delay  until 
conflicting  claims  are  settled,  seems  not  to  be  sufficient  to 
work  a  forfeiture,  (bb) 

(x)  Stevenson  v.  Lambard,  2  East,  43  ;  Den  d.  Freeman  v.  Heath,  13  Ire. 

575.    See  also  on^e,  p.  199,  and  note  (7).  L.  498;  Fusselman  v.  Worthington,  14 

(y)  Dann  v.  Spurrier,  3  B.  &  P.  399  ;  111.  135  ;  Pierce  r.Minturn,  1  Cala.  470. 

Goodright  d.  Hall  v.  Kichardson,  3  T.  But  see  Mountney  v.  Collier,  16  E.  L. 

E.  4G2,     Where  a  house  was  leased  at  &  E.  232  ;  Den  d.  Howell  v.  Ashmore, 

a  certain  rent  "  to  be  paid  quarterly,  or  2  New  Jer.  265  ;  Shultz  v.  Elliott,  11 

half  quarterly  if  required,"  and  the  te-  Humph.  183. 

nant  entered  and  paid  his  rent  quarterly  (a)  Greene  v.  Munson,  9  Verm.  37  ; 

for  one  year,  after  which  the  landlord,  Hall  v.  Dewey,  10  Verm.   593  ;    Car- 

without  previous  demand  or  notice,  dis-  penter   v.   Thompson,   3    New   Hamp. 

trained  for  half  a  quarter's  rent,  alleged  204;   Blake  v.  Howe,  1  Ailcens,  306; 

to  be  then  due,  it  was  held  that  he  had  Lord  v.  Bigclow,  8  Verm.  445  ;  Doe  d. 

no  right  so  to  do,  but  must  give  previous  Jeiferies  v.  Whittick,  Gow,  195;  Doe  d. 

notice  of  his  election.    Mallamz;.  Arden,  Calvert  v.  Frowd,  4  Bing.  557  ;  Doe  d. 

10  Bing.  299.  Grubb  r.  Grubb,  10  B.  &  C.  816  ;  Doe 
(z)  Doe  d.  Higginbotham  v.  Barton,  d.  Whitehead  v.  Pittmann,  2  N.  &  M. 

11  Ad.  &  El.  307  ;  Fleming  v.  Gooding,  673  ;  Doe  d.  Bennett  v.  Long,  9  C.  & 
10  Bing.  549  ;  Doe  d.  Knight  r.  Smythe,  P.  773  ;  Doe  d.  Davies  v.  Evans,  9  M. 
4  M.  &  S.  347  ;  Alchorne  v.  Gomme,  2     &  W.  48. 

Bing.  54;    Gravenor  v.  Woodliouse,  7  (aa)  Doe  d.  Williams  v.  Cooper,  1 

Moore,  289 ;  Parry  v.  House,  Holt,  N.  M.  &  G.  135. 

P.  489,  and  the  learned  note  by  tlie  re-  {hb)  Doe  d.  Lewis  v.  Cawdor,  1  C. 

porter;  Willison  v.  Watkins,  3  Peters,  M.  &  K.  398;  Doe  c/.  Gray  u.  Stanion, 
[440] 


CH.    III.]  HIRING   OF  REAL  PROPERTY.  *429 

The  payment  of  rent  admits  pj'imci  facie,  a  tenancy  by  im- 
plication ;  (cc)  but  this  inference  may  be  prevented  and  the 
evidence  rebutted  by  showing  that  the  payment  was  made 
under  a  mistake,  (dd) 


SECTION  IV. 

OF  SURRENDER  OF  LEASES,  BY  OPERATION  OF  LAW. 

Such  surrender  takes  place  when  the  lessee  does  sopie- 
thing  incompatible  with  the  lease ;  and  the  lessor  assents  or 
cooperates.  As  if  the  lessor  gives  and  the  lessee  accepts  a 
valid  new  lease,  (b)  There  is,  perhaps,  no  better  definition 
of  the  acts  which  make  a  surrender  in  law,  than  to  say  that 
they  are  such  acts  as  in  contemplation  of  law  are  acts  of  no- 
toriety ;  as  formal  and  solemn  as  the  execution  of  a  deed,  or 
livery,  entry,  and  acceptance  of  an  estate,  (c)  The  surrender 
may  be  by  substituting  a  new  lease  between  the  same  par- 
ties, as  we  have  seen,  or  a  new  lessee  instead  of  the  old 
one.  (d)  But  the  mere  agreement  for  substitution  is  not 
enough ;  there  must  be  an  actual  change  of  possession,  and 
an  actual  reception  by  the  lessor  of  the  new  tenant  in  the 
stead  of  the  old  one;  (e)  otherwise  the  new^  tenant  is  but  the 
*  assignee  or  sub-lessee  of  the  old  one.  Or  it  may  be  a  sur- 
render and  abandonment  of  the  premises  to  the  landlord,  he 
accepting  the  same,  and  no  new  contract  substituted.  (/) 

1  M.  &  W.  695 ;  Doe  d.  Williams  v.  W.  6S2  ;  Nlckells  v.  Atherstoue,  10  Q, 

Pasquali,  Peake,  196.  B.  944;  "Whitney  v.  Meyers,   1    Duer, 

(cc)  Gouldsworth  v.  Knights,  11  M.  266. 
&  W.  337  ;  Fenner  v.  Duplock,  2  Bing.         (e)  Graham  v.  Whichelo,  1  C.  &  M. 

10.  188  ;  Taylor  v.  Chapman,  Peake's  Add. 

(dd)  Claridge  v.  Mackenzie,  4  M.  &  Cas.  19.     See  also  M'Donnell  u.  Pope, 

G.  143;  Doe  d.  Higginbotham  i\  Bar-  13  E.L.  &  E.  11 ;  Barlow  v.Wainwright, 

ton,  11  Ad.  &  El.  307  ;  Doe  c?.Plevin  v.  22  Verm.  88. 
Brown,  7  Ad.  &  El.  447.  (  f)  Pvceve  v.  Bird,  1  C.  M.  &  R.  31. 

(6)  Lyon  v.  Eeed,  13  M.  &.  W.  285;  In  Grimraan  v.  Lcgge,  8  B.  &  C.  324, 

Doe  d.  Biddulph  v.  Poole,  11   Q.   B.  A.  demised  to  B.  the  first  and  second 

713.  floor  of  a  house  for  a  year,  at  a  rent 

(c)  Parhe,  B.,  Lyon  v.  Eeed,  13  M.  payable  quarterly.  Daring  a  current 
&  "W.  309 ;  Co.  Litt.  352,  a.  See  also  quarter,  some  dispute  arising  between 
Crowley  v.  Vitty,  9  E.  L.  &  E.  501.  the  parties,  B.  told  A.  t]iat"shc  would 

[d]  Stone  v.  Whiting,  2  Stark.  235  ;  quit  immediately.  The  latter  answered, 
Thomas  v.  Cook,  2  Stark.  408,  2  B.  &  she  might  go  when  she  pleased.  B. 
Aid.  119;  Lyon  v.  Reed,  13  M.  &  W.  quitted  and  A.  accepted  possession  of 
285  ;    Doe  d.  Hull  v.  Wood,  14  M.  &  tlie  apartments :    Ilehl,  that   A.   could 

[441] 


430*  THE   LAW    OF    CONTRACTS.  [BOOK  III. 

An  acceptance  of  rent,  by  the  lessor,  from  a  third  party,  is 
primd  facie  only  an  acceptance  of  rent  paid  by  the  lessee 
through  an  agent ;  [g)  but  if  this  presumption  be  rebutted 
by  facts  going  to  show  that  the  landlord  had  given  up  the 
lessee,  and  had  nothing  more  to  do  with  him,  and  treated  the 
new  occupant  as  his  lessee,  this  will  amount  to  a  surrender. 
For  the  landlord  cannot  hold  both  as  his  lessees.  (A) 


SECTION  V. 

m 

OF  AWAY   GOING   CROPS. 

A  tenant  whose  estate  is  terminated  by  an  uncertain  event 
which  he  could  neither  foresee  nor  control,  is  entitled  to  the 
annual  crop  which  he  sowed  while  his  estate  continued,  by 
the  law  of  Emblements.  But  a  tenant  for  years  knows  when 
his  lease  will  expire.  Nevertheless,  he  has  usually  some  right 
to  the  crop  he  sowed,  and  to  so  much  possession  of  the  land 
as  may  be  necessary  to  getting  in  the  crop  ;  but  this  right 
must  depend  either  on  agreement  or  on  usage.  At  common 
law  he  has  no  such  right,  (i)  The  local  usages  of  this  coun- 
*try,  in  this  respect,  vary  very  much,  and  are  not  often  dis- 
tinctly defined  or  well  established.  Thus,  there  is  some 
uncertainty  as  to  the  property  in  the  manure  of  a  farm. 
Generally,  in  this  country,  the  outgoing  tenant  cannot  sell 


neither  recover  the  rent,  which,  by  vir-  East,  71 ;  Davis  r.  Connop,  1  Price,  53; 
tue  of  the  original  contract,  woiiUrhave  Bcavan  v.  Delahay,  1  H.  Bl.  5  ;  Knight 
become  due  at  the  expiration  of  the  v.  Benett,  3  Bing.'364 ;  Hutton  v.  War- 
current  quarter ;  nor  rent  pro  rata  for  ren,  1  JM.  &  W.  466 ;  Senior  v.  Army- 
the  actual  occupation  of  the  premises  tage,  Holt,  N.  P.  197;  Webb  v.  Plum- 
for  any  period  short  of  the  quarter,  mcr,  2  B.  &  Aid.  746  ;  Holding  v.  Pi- 
See  also  Dodd  v.  Acklom,  6  M.  &  G.  gott,  7  Bing.  465.  By  the  custom  of 
672.  Pennsylvania,  the  right  of  the  tenant  for 
(//)  Copeland  v.  Wattss,  1  Stark.  95.  a  definite  term  to  his  away-going  crops 
(h)  Reeve  v.  Bird,  1  C.  M.  &  R.  31  ;  seems  to  be  well  established.  Difte- 
Walls  V.  Atclieson,  II  Moore,  379;  dorfi'cr  ?'.  Jones,  cited  in  Carson  r.  Bla- 
Woodcock  V.  Nuth,  8  Bing.  170  ;  Tho-  zer,  2  Binn.  487,  and  in  Stultz  v.  Dickey, 
mas  V.  Cook,  2  B.  &Ald.  119;  John-  5  Binn.  289;  Comfort  v.  Duncan,  1 
stone  t'.  Huddlestone,  4  B.  &  C  922.  Miles,  229;  Demi  v.  Bossier,  1  Pcnn. 
{i)  Caldecott  v.  Smythies,  7  C.  &  P.  224.  Such  is  the  case  also  in  New  Jer- 
808;  Wigglesworth  v.  Dallison,  Doug.  sey.  Van  Doren  v.  Evcritt,  2  South. 
201.'  Seealso  Griffiths  v.  Puleston,  13  460;  Templeman  v.  Biddle,  1  Harring. 
M.  &  W.  358  ;  Strickland  v.  Maxwell,  522. 
2  C.  &  M.  539 ;  Boraston  v.  Green,  16 

[442] 


CH.   III.]  HIRING  OF  REAL  PROPERTY.  *431 

or  take  away  the  manure,  (y)  although  it  would  seem  that 
in  England  he  can.  (k) 


SECTION  VI. 

OP   FIXTURES. 

The  tenant  may  annex  some  things  to  the  freehold,  and 
yet  retain  the  right  to  remove  them.  These  things  are  called 
Fixtures.  (/)  There  are  no  precise  and  certain  rules,  by 
which  we  can  always  determine  what  are  and  what  are  not 
removable.  The  method  of  affixing  is  a  useful  criterion  ; 
but  not  a  certain  one.  For  doors,  windows,  blinds,  and 
shutters,  although  capable  of  removal  without  injury  to  the 
house,  and  in  fact  detached  at  the  time  of  transfer,  never- 
theless pass  with  the  house  ;  while  mirrors,  wardrobes,  &c., 
although  far  more  strongly  fastened,  would  still  be  chat- 
tels, (m)  In  modern  times  this  rule  is  construed  much  more 
strongly  in  favor  of  the  tenant,  and  against  the  landlord,  than 
formerly ;  (mm)  and  more  so  in  respect  of  things  put  up  for 
purposes  of  trade  or  manufacture  than  for  other  things.  As 
between  the  seller  and  purchaser  it  is  construed  strongly 
against  the  seller.  Many  things  pass  by  a  deed  of  a  house, 
*  being  put  there  by  the  owner  and  seller,  which  a  tenant  who 
had  put  them  there  might  have  removed.  In  general,  it  may 
be  said,  that  what  a  tenant  has  added  he  may  remove,  if  he 
can  do  so  without  any  injury  to  the  premises,  unless  he  has 
actually  built  it  in,  so  as  to  make  it  an  integral  part  of  what 
was  there  originally,  (w) 

{j)  Lassell  v.  Keed,  6  Greenl.  222  ;  v.  Woods,  3  New  Hamp.  503 ;  Conner 

Staples  V.  Emeiy,  7  Greenl.  201  ;  Da-  v.  Coffin,  2  Foster,  539.     See  also  Par- 

niels  V.  Pond,  21  Pick.  367,  371 ;  Lewis  sons  v.  Camp,  11  Conn.  525;  Goodrich 

V.  Lyman,  22  Pick.  437,  442  ;  Middle-  v.  Jones,  2  Hill,  142. 

brook  V.  Corwin,  15  Wend.  169  ;  Lewis  (/)  See  Ilallcn  v.  Runder,  1  C.  M.  & 

U.Jones,  17  Penn.  262.     See  also   Kit-  E.  266,  276;  and  Amos  and  Fcrard  on 

tredge  v.  Woods,  3  New  Hamp.  503.  Fixtures,  p.  2,  for  this  definition.     But 

(/c)  See  Roberts  v.  Barker,  1  C.  &  M.  the  word  is,  perhaps,  quite  as  often  used 

808.    In  New  Hampshire  it  has  been  to    denote    tlioso   things   which,   being 

held  that  where  land  is  sold  and  con-  added,  cannot  be  removed, 

veyed,  manure  lying  about  a  barn  upon  {m)  "VVinslow  v.  Merchant's  Ins.  Co. 

the  land  will  pass  to  the  grantee,  as  an  4  Met.  306,  314. 

incident  to  the  land,  unless  there  be  a  (mm)  Dubois  v.  Kelly,  10  Barb.  496. 

reservation  of  it  iu  the  deed.    Kittrcdge  (n)  We  give  below  a  statcmeut  of  all 

[443] 


432 


THE   LAW  OF   CONTRACTS. 


[book  III. 


SECTION  VII. 


OF  NOTICE   TO   QUIT. 


A  tenant  whose  tenancy  may  be  determined  by  the  will 
of  the  landlord  is  entitled  to  notice  of  that  determination,  nor 


the  things  ■which  have  been  held  re- 
movable, and  of  those  which  have  been 
held  not  removable.  But  it  must  be 
remembered  that  each  decision  rested, 
more  or  less,  upon  the  peculiar  circum- 
stances of  the  case,  and  may  fail  as  au- 
thority when  applied  to  another  case 
which  apparently  resembles  it.  —  1 .  List 
of  things  held  not  to  be  removable :  — 
Agricultural  erections,  Elwes  v.  Maw, 
3  East,  38 ;  Contra,  Dubois  v.  Kelly,  10 
Barb.  496  :  Ale-house  bar,  Kinlyside  v. 
Thornton,  2  Wm.  Bl.  1111  ;  Barns  fix- 
ed in  the  ground,  Elwes  v.  Llaw,  supra  ; 
Beast-house,  lb. ;  Benches  affixed  to 
the  house,  Co.  Litt.  53,  a ;  Box-borders, 
not  belonging  to  a  gardener  by  trade, 
Empson  v.  Soden,  4  B.  &  Ad.  655  ; 
Carpenter's  shop,  Elwes  r.  Maw,  supra; 
Cart-house,  lb. ;  Chimney-piece,  not  or- 
namental, Leacli  V.  Thomas,  7  C.  &  P. 
327  ;  Closets  affixed  to  the  house, 
Kimpton  v.  Eve,  2  Ves.  &  Bca.  349  ; 
Conduits,  Nicholas  v.  Chamberlain, 
Cro.  Jac.  121  ;  Conservatory,  substan- 
tially affixed,  Buckland  v.  Butterfield, 
2  B.  &  B.  54 ;  Doors,  Cooke's  case, 
Moore,  177  ;  Dressers,  Kinlyside  v. 
Thornton,  supra ;  Flowers,  Littkdale,  J., 
in  Empson  v.  Soden,  supra ;  Fold-yard 
walls,  Elwes  v.  Maw,  supra ;  Fruit 
trees,  if  tenant  be  not  a  nursery-man 
by  trade,  "Wyndham  v.  Way,  4  Taunt. 
316  ;  Fuel-house, Elwes  v.  Maw,  supra; 
Glass  windows,  Co.  Litt.  53,  a,  Herla- 
kenden's  case,  4  Co.  63  ;  Hearths, 
Poole's  case,  1  Salk.  368  ;  Hedges, 
Parke,  J.,  in  Empson  v.  Soden,  supra ; 
Locks  and  keys,  Liford's  case,  1 1  Co. 
50,  Cowen,  J.,  in  Walker  v.  Sherman, 
20Wend.'636,  639;  Millstones,  14  H. 
viii.  25,  b,  pi.  6,  Liford's  case,  supra ; 
The  Queen  v.  Wheeler,  6  Mod.  187, 
Shep.  Touch.  90 ;  Manure,  Daniels  v. 
Pond,  21  Pick.  367,  Middlebrook  v. 
Corwin,  15  Wend.  169,  Lassell  v.  Reed, 
6  Greenl.  222.  But  see  Staples  v. 
Emery,  7  Greenl.  201 ;  Partitions,  Kinly- 

[444] 


side  V.  Thorton,  supra  ;  Pigeon-house, 
Elwes  V.  Maw,  supra  ;  Pineries,  sub- 
stantially affixed,  Buckland  v.  Butter- 
field,  supra ;  Pump-house,  Elwes  v. 
Maw,  supra;  Trees,  Empson  v.  Soden, 
supra;  Wagon-house,  Elwes  v.  Maw, 
supra ;  Threshing-machines,  fixed  by 
bolts  and  screws  to  posts  let  into  the 
ground,  Wiltshear  v.  Cottrell,  18  E.  L. 
&  E.  149.  — 2.  Things  held  to  be  re- 
movable, though  not  coming  Avithin  the 
class  of  tradefixtures :  — Arras-hangings, 
Bridgeman's  case,  1  Rol.  Eep.  216  ; 
Barns,  resting  by  weight  alone  upon 
foundations  let  into  the  ground,  or  upon 
blocks,  Wausborough  r.  Maton,4  Ad.  & 
El.  884,  Bui.  N.  P.  34  ;  Granaries,  rest- 
ing by  weight  alone,  Wiltshear  v.  Cot- 
trell, 18  E.  L.  &  E.  149;  Stables  and 
out-houses,  Dubois  v.  Kelly,  10  Barb. 
496 ;  Gas  fixtures,  Lawrence  v.  Kemp. 
1  Duer,  363  ;  Beds  fastened  to  the 
ceiling.  Ex  parte  Quincy,  1  Atk.  477 ; 
Carding  machines,  Walker  v.  Sherman, 
20  Wend.  636;  Taffe  v.  Warnick,  3 
Blackf.  Ill ;  Cresson  r.  Stout,  17  Johns. 
116;  Gale  v.  AYard,  14  Mass.  352; 
Tobias  v.  Francis,  3  Verm.  425  ;  other 
machinery,  Vanderpoel  v.  Van  Allen, 
10  Barb.  157;  Teatf  v.  Hewitt,  1  Ohio 
State  Reps.  511,  541  ;  Cotton  spinning 
machines,  screwed  to  the  floor,  Hel- 
lawell  V.  EastAVOod,  3  E.  L.  &  E.  562  ; 
Chimney-pieces,  (ornamental,)  Tindal, 
C.  J.,  in  Grymes  v.  Boweren,  6  Bing. 
437 ;  Coffee-mills,  Rex  v.  Londonthorpe, 
6  T.  R.  379  ;  Cornices,  (ornamental.) 
Averv  v.  Cheslvn,  3  Ad.  &  El.  75  :  Fire- 
frame,  Gaffield  v.  Hapgood,  17  Pick. 
192;  Furnaces,  Squier  r.  Mayer,  Freem. 
Ch.  249  ;  Gates,  (if  removable  without 
injury  to  the  premises,)  Tindal,  C.  J.,  in 
Grymes  v.  Boweren,  supra,  Amos  and 
Ferard  on  Fixtures,  p.  278 ;  Iron  backs 
to  chimneys.  Harvey  v.  Harvey,  Str. 
1141 ;  Looicing-glasses,  Beck  v.  Rebow, 
1  P.  Wms.  94  ;"'I\Ialt-mills,  Lord  Ken- 
yon,  in  Rex.  v.  Londonthorpe,  supra  ; 


CH.  III.] 


HIRING   OF  REAL  PROPERTY. 


n433 


can  he  be  dispossessed  by  process  of  law,  without  that  previous 
notice.  In  England,  this  notice,  in  the  case  of  a  tenant  from 
year  to  year,  is  one  half  of  a  year,  which  is  distinguished 
from  six  months  notice,  (o)  In  this  country  there  is  no 
uniform  rule.  In  some  of  the  States  the  English  rule  seems  to 
have  been  adopted,  (p)  In  others  it  is  regulated  by  statute,  (g) 
*A  notice  to  quit  is  necessary  in  all  those  cases  in  which 
the  implication  of  law  creates  a  tenancy  from  year  to  year. 


Movable  boards  fitted  and  used  for  put- 
ting up  corn  in  binns,  Whiting  v.  Bras- 
tow,  4  Pick.  310  ;  Mills  on  posts, 
Ward's  case,  4  Leon.  241  ;  Ornamental 
fixtures,  Amos  and  Ferard  on  Fixtures, 
p.  67  ;  Beck  v.  Rebow,  supra ;  Padlock 
for  a  corn-house.  Whiting  v.  Brastow, 
supra ;  Pumps  slightly  attached,  Grymes 
V.  Boweren,  supra  ;  Rails  and  posts, 
Fitzherbert  v.  Shaw,  1  H.  Bl.  258;  Sta- 
bles on  rollers,  lb.;  Stoves,  Smith,  J., 
in  Gray  v.  Holdship,  17  S.  &  R.  41.3, 
Tindul,  C.  J.,  in  Grymes  v.  Boweren, 
supra,  Greene  v.  First  Parish  in  Maiden, 
10  Pick.  500,  504,  sub  Jine ;  Tapestry, 
Harvey  v.  Harvey,  supra ;  Windmill 
on  posts,  Rex  v.  Londonthorpe,  supra ; 
Window-blinds,  Greene  i;.  First  Parish  in 
Maiden,  supra.  — 3.  Trade  fixtures  held 
to  be  removable: — Brewing  vessels, 
Lawton  v.  Lawton,  3  Atk.  13;  Build- 
ings accessory  to  removable  trade  fix- 
tures, Dudley  v.  Warde,  Ambl.  113; 
Cider-mills.  Lawton  v.  Lawton,  supra, 
Holmes  v.  Trcmper,  20  Johns.  29  ;  Col- 
liery machines,  Lawton  v.  Lawton,  su- 
pra ;  Coppers,  Pool's  case,  1  Salk. 
368,  Lawton  v.  Lawton,  supra ;  Dutch 
barns.  Dean  v.  Allalley,  3  Esp.  11  ;  En- 
gines, Lawton  v.  Lawton,  si/^?-a ;  Dud- 
ley V.  Warde,  sui)ra ;  Jibs,  Davis  v. 
Jones,  2  B.  &  Aid.  165;  Salt-pans, 
Lawton  v.  Salmon,  1  H.  Bl.  259,  n.  ; 
Shrubs  planted  for  sale,  Penton  v.  Ro- 
bart,  2  East,  88,  Miller  v.  Baker,  1 
Met.  27  ;  Soap  works,  Poole's  case,  su- 
pra ;  Steam  engine,  Pembcrton  v.  King, 
2  Dev.  (N.  C.)  376,  Lemar  v.  Miles,  4 
Watt!?,  330;  Stills,  Reynolds  v.  Shuler, 

5  Cow.  323,  Burk  v.  Baxter,  3  Mis- 
souri, 207';  Trees  planted  for  sale.  Pen- 
ton  I'.  Robart,  supra.  Miller  v.  Baker, 
1  Met.  27  ;  Varnish  house,  Penton  v. 
Robart,  supra;  Vats,  Pool's  case,  su- 
pra. 

(o)  Doc  d.  Williams  v.  Smith,  5  Ad. 

6  El.  350 ;  Johnstone  v-  Hudlestone,  4 
B.  &  C.  922.     Sec  also  Roe  d.  Durant 


VOL.    I. 


38 


V.  Doe,  6  Bing.  574 ;  Doe  d.  Harrop  v. 
Green,  4  Esp.  198. 

(/))  Jackson  v.  Bryan,  1  Johns.  322  ; 
Hanchet  v.  Whitney,  1  Verm.  311  ; 
Trousdale  v.  Darnclf,  6  Yerg.  431. 

(f/)  In  Massachusetts,  three  months 
notice  is  enough  in  all  cases  of  tenancy 
at  will,  and  if  the  rent  be  payable  at 
shorter  periods,  then  the  notice  need 
only  equal  one  of  those  periods.  Rev. 
Stat.  c.  60,  ^  26.  A  question  has  re- 
cently arisen  in  the  Supreme  Court  of 
Massachusetts,  in  the  case  of  Prescott 
V.  Elms,  7  Cush.  346,  as  to  the  con- 
struction of  the  last  part  of  this  pro- 
vision. It  appeared  in  that  case  that 
the  defendant  was  tenant  to  the  plain- 
tiff, and  that  the  rent  was  payable 
monthly,  but  no  evidence  was  offered 
to  show  on  what  day  of  tiie  month  it 
became  due.  On  the  21st  day  of  Sep- 
tember, 1848,  the  plaintiff  gave  the  de- 
fendant notice  to  quit  the  premises,  and 
on  the  26th  day  of  Octolier  following 
brought  his  action  to  recover  them. 
The  defendant  requested  the  court  to 
rule  that  the  notice  was  insufficient,  be- 
cause it  ought  to  appear  that  the  notice 
covered  an  entire  period  intervening 
between  the  times  of  paying  rent;  so 
that  if  the  rent  was  payable  on  the  first 
day  of  each  month,  and  notice  was 
given  on  the  21st  of  September,  the 
tenant  was  under  no  obligation  to  re- 
move, and  the  plaintiff  could  not  com- 
mence his  action  until  the  first  day  of 
November.  The  court  declining  so  to 
rule,  the  case  was  carried  to  the  Su- 
preme Court,  where  the  exception  was 
sustained,  on  the  ground  that  the  Rev. 
Stat,  had  in  this  respect  adopted  the 
rule  of  the  common  law,  as  to  which, 
see  13  H.  viii.  15,  b  ;  Right  v.  Darby,  1  T. 
R.  159  ;  Doe  d.  Shore  v.  Porter,  3  T.  R. 
13  ;  Richardson  r.  Langridge,  4  Taunt. 
128;  Doe  d.  Iluddlcston  (•.  Johnston, 
McCl.  &  Y.  141.  But  the  English  rule 
applies  onl}'  where  there  is  a  yearly  ten- 

[445] 


-433 


THE   LAW   OF   CONTRACTS. 


[book  III. 


or  one  determinable  by  the  landlord.  (/•)  But  a  notice  to 
quit  is  not  necessary  where  the  relation  of  landlord  and  tenant 
does  not  subsist,  (5)  or  where  the  tenant  distinctly  disclaims 
the  title  of  his  landlord.  (/) 

As  the  tenant  is  to  act  upon  the  notice  when  he  receives 
it,  it  should  be  such  a  notice  as  he  may  act  upon  safely ;  and 
therefore  it  must  be  one  which  is  binding  upon  all  parties 
concerned  at  the  time  it  is  given,  and  needs  no  recognition 
by  any  one  of  them,  subsequently  ;  (11)  nor  will  such  recog- 
nition make  it  sufficient,  (v)  But  a  notice  by  one  joint 
tenant  for  himself  and  the  others  is  sufficient ;  [vv)  and  so  is 
a  notice  by, one  copartner  for  the  firm,  (ivw) 

No  particular  form  of  the  notice  is  necessary  ;  but  there 
must  be  a  reasonable  certainty  in  the  description  of  the  pre- 
mises, and  in  the  statement  of  the  time  when  the  tenant 
must  quit.  And  it  may  be  oral,  unless  there  be  an  express 
agreement  that  it  should  be  in  writing,  (w)  It  should  be 
served  upon  the  tenant,  personally,  or  by  leaving  it  with  the 


ancy  expressly  or  impliedly  created,  and 
there  is  no  agreement  between  the  parties 
in  relation  to  the  termination  of  the  ten- 
ancy ;  but  where  the  parties  agree  that 
the  tenancy  shall  expire  upon  the  giv- 
ing of  a  notice  for  a  certain  time,  the 
notice  may  be  civen  at  any  time.  Doe  d. 
King  V.  Grafton,  11  E.  L.  &  E.  488. 
See,  however,  Baker  v.  Adams.  5  Gush. 
99,  and  also  Uoe  v.  Gox,  11  Q.B.  122; 
Post  V.  Post,  14  Barb.  253.  In  Massa- 
chusetts a  tenant  at  sufferance  is  not  en- 
titled to  notice.  Benedict  f.  Morse,  10 
Met.  223  ;  Kinsley  v.  Ames.  2  Met.  29 ; 
HoUis  V.  Pool,  3"  Met.  350.  See  also 
Ellis  V.  Paige.  1  Pick.  43;  Goffin  v. 
Lunt,  2  Pick'.  70. 

(r)  Doe  d.  Martin  v.  Watts,  2  Esp. 
501,  7  T.  R.  83;  Denn  d.  Brune  v. 
Eawlins,  10  East.  (Day's  ed.)  261, n.  2. 

(s)  Right  V.  Bawden,  3  East,  260 ; 
Roe  d.  Brunc  v.  Pridea.ux,  10  East, 
158.  Therefore,  if  a  man  gets  into 
possession  of  a  house  to  be  let,  with- 
out the  privity  of  the  landlord,  and 
they  afterwards  enter  into  a  negotia- 
tion for  a  lease,  but  differ  upon  the 
terms,  the  landlord  may  maintain 
ejectment  to  recover  possession  of  the 
promises  without  giving  any  notice  to 
quit.     Doe  d.   Knight   v.   Quigley,   2 

[446] 


Gamp.  505.  So  a  member  of  a  firm, 
occupying  a  house  of  one  of  his  copart- 
ners during  the  partnership,  is  not  enti- 
tled to  notice  at  its  close.  Waithman 
V.  Miles,  1  Stark.  181.  So  of  a  vendee 
in  possession,  who  has  not  paid  the 
price,  nor  been  recognized  as  a  tenant. 
Doe  d.  Moore  v.  Lawder,  1  Stark.  308; 
Doe  d.  Leeson  v.  Sayer,  3  Gamp.  8. 
See  also  Doe  d.  Tomes  v.  Ghamber- 
laine,  5  M.  &  W.  14. 

{t)  Doe  d.  Davies  v.  Evans,  9  M.  & 
W.  48 ;  Doe  d.  Williams  v.  Pasquali, 
Peake,  196  ;  Bower  v.  Major,  1  B.  &  B. 
4  ;  Doe  'd.  Galvert  v.  Frowd,  4  Bing. 
557 ;  Doe  (/.  Phillips  v.  Rollings,  4  C. 
B.  188;  Doe  v.  Glarke,  Peake's  Add. 
Gas.  239. 

(m)  Doe  d.  Fisher  r.  Guthell,  5  East, 
491  ;  Doe  d.  Lyster  v.  Goldwin.  2  Q. 
B.  143. 

(r)  Parke,  B.,  in  Buron  v.  Denman, 
2  Exch.  167,  188;  Doe  d.  Lyster  v. 
Goldwin,  supra  ;  Doe  d.  Mann  v.  Wal- 
ters, 10  B.  &  G.  626. 

(vv)  Doe  d.  Aslin  v.  Summersett,  1 
B.  &  Ad.  135  ;  Doe  d.  Kiudersley  v. 
Hughes,  7  M.  &  W.  139. 

(ww)  Doe  d.  Elliott  v.  Hujme,  2  M. 
&  Ry.  483. 

[w)  Doe  d.  Macartney  v.  Crick,  5 


CH.  III.] 


HIRING   OF  HEAL   PROPERTY. 


^434 


tenant's  wife,  or  servant,  at  the  usual  place  of  abode  of  the 
tenant ;  (a;)  and  if  so  left  it  is  sufficient,  although  it  never 
*  reach  the  tenant,  {y)  If  there  be  more  than  one  tenant,  the 
notice  should  be  addressed  to  all,  but  it  may  be  served  on 
either  one.  (c) 

A  valid  notice,  properly  served,  vests  the  premises  in  the 
landlord,  and  absolutely  terminates  the  tenant's  right  of  pos- 
session, at  the  time  stated,  {a)  But  this  and  all  other  effect 
of  the  notice  may  be  waived  by  the  landlord,  and  is  so  waived 
by  his  receiving  subsequent  rent  from  the  tenant,  [aa) 


Esp.  196  ;  Doe  d.  Dean  and  Chapter  of 
Rochester  v.  Pierce,  2  Camp.  96  ;  Legg 
d.  Scot  V.  Benion,  Willes,  43. 

(x)  Jones  d.  Griffiths  ;;.  Marsh,  4  T. 
E.  404  ;  Doe  d.  Buross  v.  Lucas,  5  Esp. 
183. 

(y)  Doe  d.  Neville  v.  Dunbar,  M.  & 
Malk.  10. 

(z)  Doe  d.  Bradford  v.  Watkins,  7 
East,  551  ;  Doe  d.  Macartney  v.  Crick, 
5  Esp.  196. 

(a)  Turner  v.  Meymott,  1  Bing.  158  ; 
Taunton  v.  Costar,  7  T.  E.  431 ;  Lacey 


r.  Lear,  Peake's  Add.  Cas.  210.  Whe- 
ther a  tenant  in  possession,  who,  after  a 
good  notice  has  expired,  has  been  as- 
saulted and  forcibly  expelled  from  the 
premises,  may  have  his  action  against 
the  landlord,  seems  to  be  doubtful.  See 
Newton  v.  Harland,  1  ]\r.  &  G.  644  ; 
Harvey  v.  Brydges,  14  M.  &  W.  437 
Wright  V.  Burroughcs,3  C.  B.  685. 

(aa)  Collins  v.  Cantv,  6  Cush.  415 
Blythe  v.  Dennett.  6  i:.  L.  &  E.  424 
See  also  Hunterr.  Osterhondt,  11  Barb 
33. 

[447] 


435  THE  LAW   OF   CONTRACTS.  [BOOK  III. 


CHAPTER  IV. 

SALE  OF  PERSONAL  PROPERTY. 

Sect.  I.  —  Essentials  of  a  Sale. 

All  that  is  essential  to  the  sale  of  a  chattel,  at  common 
law,  is  the  agreement  of  the  parties  that  the  property  in  the 
subject-matter  should  pass  from  the  vendor  to  the  vendee  for 
a  consideration  given,  or  promised  to  be  given,  by  the  ven- 
dee. Yet  where  the  parties  have  not  explicitly  manifested 
their  meaning,  the  law  makes  some  important  inferences. 
There  is  a  presumption  that  every  sale  is  to  be  consummated 
at  once;  that  the  chattel  is  to  be  delivered,  and  the  price 
paid,  without  delay.  If,  therefore,  nothing  appears  but  an 
offer  and  an  acceptance,  and  the  vendee  goes  his  way  with- 
out making  payment,  it  is  held  to  be  a  breach  of  the  con- 
tract, (which  is  presumed  to  have  contemplated  payment  on 
the  spot,)  and  the  vendor  is  not  bound  by  the  sale.  But  if 
there  was  a  delivery  of  the  chattel,  or  the  receipt  of  earnest, 
or  of  part  payment,  either  of  these  is  evidence  of  an 
understanding  that  something  should  remain  to  be  per- 
formed in  fuiuro ;  and  the  legal  presumption  is  rebutted. 
Where  the  terms  of  the  contract  expressly  postpone  deli- 
very, or  payment,  or  both,  to  a  future  day,  here  also 
the  sale  is  valid,  and  no  legal  presumption  obstructs  the 
intention  of  the  parties,  but  the  property  in  the  chattel  sold 
passes  immediately.  In  this  case  no  earnest  is  necessary  to 
bind  the  bargain,  [b)     The  effect  of  the  statute  of  frauds,  in 

(6)  The  law  of  sales,  as  it  stands  at  gains  can  be  to  take  effect  instantly,  or 

this  moment  at  the  common  law  is  at  upon  a  thing  to  be  done  thereafter.  They 

least  as  old  as  the  year  books.     In  14  can  be  upon  condition,  and  they  can  also 

H.  8, 17,  b,  21,  b,  in  the  Common  Pleas,  be  perfect ;  and  yet  no  quid  pro  quo  im- 

the  law  upon  this  subject  is  thus  stated  mediately.     And  all  tliis  depends  upon 

hy  Pollard,  J.:  —  "Bargains  and   sales  the  communication  between  you  and  me: 

all   depend   upon  comniunication   and  as  that  I  shall  have  £20  for  my  horse, 

words  between  the»parties  ;  for  all  bar-  and  I  agree ;  now  if  you  do  not  pay  the 

[448] 


CH.  IV.] 


SALE  OF  PERSONAL  PROPERTY. 


436 


modifying  the  principles  of  the  common  law  in  relation  to 
sales,  will  be  considered  hereafter.     We  will  now  proceed  to 
^  treat  of  an  absolute  sale,  and  then  of  a  conditional  sale  of  a 
chattel. 


SECTION  II. 


ABSOLUTE  SALE  OF  CHATTELS. 


A  sale  of  a  chattel  is  an  exchange  thereof  for  money ;  but 
a  sale  is  distinctly  discriminated  in  many  respects  from  an 
exchange,  in  law ;  an  exchange  being  the  giving  of  one  thing 
and  the  receiving  of  another  thing  ;  while  a  sale  is  the  giving 
of  one  thing  for  that  which  is  the  representative  of  all 
things,  (c) 


money  immediately,  this  is  not  a  bar- 
gain ;  for  my  agreement  is  for  the  £20, 
and  if  you  do  not  pay  the  money 
straightway  you  do  not  act  according 
to  my  agreement.  I  ought,  however, 
in  this  case,  to  wait  convenient  leisure, 
to  wit,  until  you  have  counted  your 
money.  But  if  you  go  to  your  house 
for  the  money,  am  I  obliged  to  wait  ? 
No,  truly ;  for  I  would  be  in  no  cer- 
tainty of  my  money  or  of  your  return ; 
and  therefore  it  is  no  contract  unless 
this  [delay]  be  agreed  at  the  communi- 
cation. But  if  I  sell  my  horse  to  you 
for  so  much  as  J.  at  S.  shall  say,  this  is 
good  if  he  does  say,  and  if  not,  void ; 
and  thus  a  contract  can  be  good  or 
void,  depending  upon  matter  subse- 
quent. Likewise  if  I  sell  my  horse  for 
£10  to  be  paid  on  a  day,  now  this  is 
good;  and  yet  there  is  no  quid  pro  quo 
immediately."  In  the  same  case  Brud- 
nel,  C.  J.,  said:  —  "As  has  been  said, 
bargains  and  sales  are  as  is  concluded 
and  agreed  between  the  parties — as  their 
intentions  can  be  gathered.  For  if  I 
sell  my  horse  to  you  for  £10,  and  we 
both  are  agreed,  and  I  accept  a  penny 
in  earnest,  this  is  a  perfect  contract ;  you 
shall  have  the  horse,  and  I  shall  have 
an  action  for  the  money.  But  if  I  wish 
to  sell  my  horse  to  vou  for  £10,  and  you 
say  that  you  will  gfve  £10  for  him,  and 
I  say  that  I  am  content ;  still,  if  you  do 
not  pay  the  money  now,  but  "depart 
from  the  place,  this  is  no  bargain,  for  I 

38* 


am  only  content  that  you  should  have 
my  horse  for  £10,  and  notwithstanding 
you  say  you  are  content,  the  transaction 
is  yet  not  perfect ;  for  you  do  not  pay 
the  money,  and  so  do  not  perform  the 
agreement."  See  also  Shop.  Touch,  p. 
224.     And  also  Noy's  Maxims,  p.  88. 

(c)  The  distinction  between  sales  and 
exchanges  is  well  pointed  out  in  an 
anonymous  case  in  3  Salk.  157,  where 
it  is  said:  —  " Permutatio  vidua  est  cmp- 
tioni,  but  exchanges  Avere  the  original 
and  natural  way  of  commerce,  prece- 
dent to  buying,  for  there  was  no  buying 
till  money  was  invented  ;  now,  in  ex- 
changing, both  parties  are  buyers  and 
sellers,  and  both  equally  warrant;  and 
as  this  is  a  natural  rather  than  a  civil 
contract,  so  by  the  civil  law,  upon  a  bare 
agreement  to  exchange,  without  a  de- 
livery on  both  sides,  neither  of  the  par- 
ties could  have  an  action  upon  such 
agreement,  as  they  may  in  cases  of  sell- 
ing ;  but  if  there  was  a  delivery  on  one 
side,  and  not  of  the  other,  in  such  case 
the  deliverer  might  have  an  action  to 
i-ecover  the  thing  which  he  delivered, 
but  he  could  have  no  action  to  enforce 
the  other  to  deliver  what  he  agreed  to 
deliver,  and  which  the  deliverer  was  to 
have  in  lieu  of  that  thing  which  he  de- 
livered to  the  other."  —  If  goods  liave 
been  delivered  by  one  party,  and  the 
other  party  agrees  to  deliver  other 
goods  of  a  similar  quality  on  demand, 
the   transaction   is  not  a  sale,  but  an 

[449] 


437 


THE   LAW   OF   CONTRACTS. 


[book   III. 


For  a  sale  to  be  valid  in  law,  there  must  be  parties,  a  con- 
sideration, and  a  thing  to  be  sold.  A]l  persons  may  be  par- 
ties to  a  sale,  unless  they  labor  under  the  disabilities  or 
restraints  which  have  been  spoken  of  in  reference  to  contracts 
generally. 

Of  the  consideration  we  have  spoken  already. 

The  existence  of  the  thing  to  be  sold,  or  the  subject-matter 
of  the  contract,  is  essential  to  the  validity  of  the  contract,  (d) 
If  a  horse  sold  be  dead  before  the  sale,  or  merchandise  be 
destroyed  by  fire,  both  parties  being  ignorant  thereof,  the 
sale  is  wholly  void.  If  a  substantial  part  of  the  thing  sold 
be  non-existent,  it  is  said  (e)  that  the  buyer  has  his  option  to 
rescind  the  sale,  or  take  the  remainder  with  a  reasonable 
abatement  of  the  price.  But  where  the  parties  are  equally 
innocent,  we  think  the  meaning  and  effect  of  this  rule  is  that 


agreement  to  exchange.  Mitchell  v. 
Gile,  12  New  Hamp.  390.  — And  proof 
of  an  exchanr/e  will  not  support  an  aver- 
ment of  a  sale  of  goods.  Vail  v.  Strong, 
10  Verm.  457. —  But  in  Sheldon  r. 
Cox,  3  B.  &  C.  420,  where  A.  agreed 
to  give  a  horse,  warranted  sound,  in 
exchange  for  a  horse  of  B.,  and  a  sum 
of  money ;  and  the  horses  were  ex- 
changed, but  B.  refused  to  pay  the  mo- 
ney, pretending  that  A.'s  horse  was 
unsound ;  it  was  held  that  it  might  be 
recovered  on  an  indebitatus  count  for 
horses  sold  and  delivered. 

(d)  Wood  &  Foster's  case,  1  Leon. 
42;  Grantham  v.  Hawley,  Hob.  132; 
Strickland  v.  Turner,  14"E.  L.  &  E. 
471 ;  Robinson  v.  Macdonnell,  5  JSI.  &  S. 
228,  where  it  was  heJd  that  an  assign- 
ment of  the  freight,  earnings,  and  pro- 
fits of  a  ship  does  not  extend  to  the 
profits  not  in  existence,  actual  or  poten- 
tial, at  the  time  of  the  assignment. 
Therefore,  where  C.  assigned  by  deed 
to  S.  the  freight,  earnings,  and  profits 
of  the  ship  W.,  which  ship  afterwards, 
in  a  voyage  to  the  South  Seas,  obtained 
a  quantity  of  oil,  the  produce  of  whales 
taken  in  the  said  voyage;  it  was  lield,  that 
this  oil  did  not  pass  to  S.  by  the  assign- 
ment ;  for  the  assignor  had  no  proper- 
ty, actual  or  potential,  in  the  oil,  at  the 
time  of  assignment,  and  the  voyage  was 
not  then  contemplated.  But  where  the 
plaintiffs  had,  shipped  corn  to  London 
in  a  vessel  chartered  by  them,  and  sent 

[450] 


the  bill  of  lading  together  with  the 
policy  of  insurance  efl'ected  upon  the 
property,  to  the  defendants,  cornfactors 
in  London,  who  were  to  act  under  a 
del  credere  commission,  and  the  defend- 
ants on  the  15th  of  May  sold  the  cargo 
to  C.  sending  him  a  bought  note,  stating 
that  he  had  bought  of  them  1180  quar- 
ters of  Salonica  Indian  corn,  of  fair 
average  quality  when  shipped  on  board 
The  Ivezia  Page  from  Salonica,  bill  of 
lading  dated  February  22:  at27s. per  quar- 
ter, free  on  board  and  including  freight 
and  insurance  to  a  safe  port  in  the  United 
Kingdom,  the  vessel  calling  at  Cork  or 
Falmouth  for  orders,  payment  to  be 
upon  handing  shipping  documents;  it 
was  held  {Pollock,  C.  B.  dissenting)  tli^t 
the  meaning  of  the  contract  was  that 
the  purchaser  bought  the  cargo  if  it 
existed  at  the  date  of  the  contract,  but 
that  if  damaged  or  lost  he  bought  the 
benefit  of  the  insurance,  and  therefore 
although  upon  the  voyage  the  corn  had 
become  fermented  and  so  heated  that  it 
was  unfit  to  be  carried,  and  was  sold  on 
the  24tli  April  at  Tunis  Bay,  he  was 
bound  to  pay  the  stipulated  price  in  a 
reasonable  time  after  the  delivery  of  the 
shipping  documents,  and  that  therefore 
the  defendants  were  liable  to  the  plain- 
tiff, under  their  del  credere  commission. 
Couturier  v.  Hastie,  16  E.  L.  &  E.  562, 
(e)  2  Kent's  Com.  Lee.  39,  p.  469.-^ 
The  same  rule  obtains  in  the  French 
Law.     Code  Napoleon,  No.  1601. 


CH.  IV.] 


SALE  OF  PERSONAL  PROPERTY. 


^438 


the  buyer  should  have  only  his  choice  between  enforcing  or 
rescinding  the  contract  as  to  the  remainder.  That  is,  he 
may  take  the  remainder,  if  he  will  pay  the  price  of  the 
whole,  or  will  pay  it  with  an  abatement  which  can  be  made 
exact  by  a  mere  numerical  proportion  ;  as  where  the  goods 
were  all  of  one  quality,  and  a  certain  part  was  wholly  de- 
stroyed, and  the  residue  left  wholly  uninjured.  But  if  a  new 
price  is  to  be  made  for  the  remainder,  by  a  new  estimate  of 
its  value,  this  can  be  done  only  by  mutual  consent.  (/) 

*A  mere  contingent  possibility,  not  coupled  with  an  inte- 
rest, is  no  subject  of  sale ;  as  all  the  wool  one  shall  ever 
have ;  [g-)  or  the  sheep  which  a  lessee  has  covenanted  to 
leave  at  the  end  of  an  existing  term.  If  rights  are  vested,  or 
possibilities  are  distinctly  connected  with  interest  or  property, 
they  may  be  sold.  (//)  But  if  one  sells  what  he  has  not  now, 
and  has  made  no  contract  for  purchasing,  and  has  no  definite 
right  to  expect,  as  by  consignment,  but  intends  to  go  into  the 
market  and  buy,  it  has  been  held  that  he  cannot  enforce  this 
contract ;  (f)  and  although  this  is  questioned,  such  a  contract 


{/)  See  also  Farrer  v.  Nightingal,  2 
Esp.  G39,  where  Lord  Kenyan  said:  — 
"I  have  often  ruled  that  where  a  person 
sells  an  interest,  and  it  appears  that  the 
interest  which  he  pretended  to  sell  was 
not  the  tnie  one;  as,  for  example,  if  it 
was  for  a  lesser  number  of  years  than 
he  had  contracted  to  sell,  the  buj-ermay 
consider  the  contract  as  at  an  end,  and 
bring  an  action  for  money  had  and  re- 
ceived to  recover  back  any  sum  of  mo- 
ney he  may  have  paid  in  part  perform- 
ance of  the  agreement  for  the  sale ;  and 
though  it  is  said  here,  that  upon  the 
mistake  being  discovered  in  the  num- 
ber of  years  of  which  the  defendant 
stated  himself  to  be  possessed,  he  offer- 
ed to  make  an  allowance  pro  tdiito,  that 
makes  no  difference  in  tlio  case ;  it  is 
sufficient  for  the  plaintiff  to  say,  that 
is  not  the  interest  which  I  agreed  to 
purchase." 

(g)  See  Grantham  v.  Hawley,  Hob. 
132.  See  Langton  v.  Horton,  1  Hare, 
556.  But  a  valid  sale  may  be  made  of 
the  wine  that  a  vineyard  is  expected  to 
produce ;  or  the  grain  that  a  field  is  ex- 
pected to  grow  ;  or  the  milk  that  a  cow 
may  yield  during  the  coming  year,  or 
the  future  young  bora  of  a  female  ani- 


mal then  owned  by  the  vendor,  (McCar- 
ty  V.  Blovins,  5  Yerg.  195,)  or  the  wool 
that  shall  hereafter  grow  upon  his  sheep. 
But  see  Screws  i;.  Roach,  22  Ala.  675. 
(/()  See  Jones  v.  Roe,  3  T.  R.  88. — 
But  the  expectancy  of  an  heir  presump- 
tive, or  apparent,  (the  fee  simple  being 
in  the  ancestor,)  is  not  an  interest  or  a 
possibility  capable  of  being  the  subject 
of  a  contract.  Carleton  v.  Leighton,  3 
Mer.  667. 

((■)  Bryan  v.  Lewis,  Ry.  &  Mood. 
386.  And  see  Lorvmer  v.  Smith,  1  B 
&  C.  1,  2  D.  &  R.  23,  Abbott,  C.  J.  But 
this  doctrine  was  directly  overruled  iu 
the  late  case  of  Hibblewhite  v.  McMo- 
rine,  5  M.  &  W.  462,  where  Parke,  B., 
in  delivering  the  judgment  of  the  court, 
is  reported  to  have  said :  —  "I  have 
always  entertained  considerable  doubt 
and  suspicion  as  to  the  correctness  of 
Lord  Tenterden's  doctrine  in  Brvan  v. 
Lewis  ;  it  excited  a  good  deal  oY  sur- 
prise in  my  mind  at  the  time;  and  when 
examined,  I  think  it  is  untenable.  I 
cannot  see  what  principle  of  law  is  at 
all  affected  by  a  man's  being  allowed  to 
contract  for  the  sale  of  goods,  of  wliich 
he  has  not  possession  at  the  time  of 
the  bargain,  and  has  no  reasonable  ex- 

[451] 


439 


THE   LAW   OF   CONTRACTS. 


BOOK  III. 


if  enforceable,  as  by  the  later  authority  and  the  better  reason 
it  seems  to  be,  must  certainly  be  regarded  as  a  contract  for 
a  future  sale,  and  not  as  a  present  contract  of  sale  ;  and 
therefore*  the  property  in  the  thing  when  it  is  acquired  by  the 
proposed  vendor,  does  not  pass  at  once  to  the  proposed 
vendee  until  the  actual  sale  be  made,  (ii) 

A  sale  may  be  good  in  part,  and  void  as  to  the  residue  ; 
*good  as  between  the  parties, but  void  as  to  creditors;  good 
as  to  some  of  the  creditors,  but  void  as  to  others,  [j) 


SECTION  III. 

PRICE,   AND   AGREEMENT  OF  PARTIES. 

The  price  to  be  paid  must  be  certain,  or  so  referred  to  a 
definite  standard  that  it  may  be  made  certain  ; — (k)  as  what 


pectation  of  receiving.  Such  a  contract 
does  not  amount  to  a  wager,  inasmuch 
as  both  the  contracting  parties  are  not 
cognizant  of  the  fact  that  the  goods  arc 
not  in  the  vc'ndor's  possession  ;  and 
even  if  it  were  a  wager,  it  is  not  illegal, 
because  it  has  no  necessary  tendency  to 
injure  third  parties.  The  dictum  of 
Lord  Tenterden  certainly  was  not  a 
hasty  observation  thrown  out  by  him, 
because  it  appears  from  the  case  of  Lo- 
rymer  v.  Smith  that  he  had  entertained 
and  expressed  similar  notions  four  years 
before.  He  did  not,  indeed,  in  that 
case,  say  that  such  a  contract  was  void, 
but  only  that  it  was  of  a  kind  not  to  be 
encouraged  ;  and  the  strong  opinion  he 
afterwards  expressed  appears  to  have 
gradually  formed  in  his  mind  during 
the  interval,  and  was  no  doubt  confirm- 
ed by  the  effects  of  the  unfortunate 
mercantile  speculations  throughout  the 
country  about  that  time.  There  is  no 
indication  in  any  of  the  books  of  such  a 
doctrine  having  ever  been  promulgated 
from  the  bench,  until  the  case  of  Lory- 
mer  v.  Smith,  in  the  year  1822;  and 
there  is  no  case  which  has  been  since 
decided  on  that  authority.  Not  only, 
then,  was  the  doubt  expressed  by  Bo- 
sanquet,  J.,  in  Wells  v.  Porter,  well 
founded,  but  the  doctrine  is  clearly 
contrary  to  law."     See  also   Wells  v. 

[452] 


Porter,  2  Bing.N.  C  722,  Bosanquet,  J. ; 
Mortimer  v.  McCallan,  6  M.  &  W,  58 ; 
Stanton  v.  Small,  3  Sandf.  230. 

(ii)  Black  V.  Webb,  20  Ohio,  304; 
Stanton  v.  Small,  3  Sandf.  230 ;  Lunn 
V.  Thornton,  1  Com.  Bench,  385. 

( j)  Bradford  v.  Tappan,  11  Pick.  76, 
79. 

(k)  Brown  v.  Bellows,  4  Pick.  189, 
where  the  price  was  fixed  by  referees, 
and  the  court  said  in  giving  judgment : 
"It  is  objected  that  the  price  should 
have  been  fixed  by  the  agreement, 
whereas  it  was  to  be  ascertained  by  the 
referees ;  and  we  are  referred  to  Inst. 
3,  24,  pr.  where  it  is  said :  — '  Pretium 
autem  constitui  oportet,  nam  nulla  emptio 
sine  pretio  esse  potest.'  But  we  apply 
another  rule  —  id  certum  est,  quod  certum 
reddi  potest.  It  was  indeed  formerly 
doubted  whether,  when  a  thing  was  to 
be  sold,  at  whatever  price  Titius  should 
value  it,  such  contract  would  be  good  ; 
but  by  Inst.  3,  24,  1,  it  is  decided  that 
it  would  be,  '  sed  nostra  decisio  ita  hoc 
constituit,  ut  quoties  sic  composita  sit  ven- 
ditio,  quanti  ille  cestimaverit,  sub  hac  con- 
ditione  staret  contractus,  ut  siquidem  ille, 
qui  nominatus  est,  pretium  definierit,  tunc 
omnimodo  secundum  ejus  cestimationem  et 
pretium] per solvatur,  et  res  tradatur,  et 
venditio  ad  effectum  perducatur.'  So  it 
is  said  in  Ayliffe's  Civ.  Law,  B.  4,  tit. 


en.  IV.]        SALE  OF  PERSONAL  PROPERTY.  *440 

another  man  has  given  ;  pr  what  another  man  shall  say 
should  be  the  price  ;  but  if  this  third  party  refuse  to  fix  the 
price,  the  sale  is  void.  (/)  And  the  thing  sold  must  be  spe- 
cific, and  capable  of  certain  identification.  There  must  be 
an  agreement  of  mind  aa  to  this ;  and  if  there  be  an  honest 
error  as  to  the  price,  or  as  to  the  substantial  and  essential 
qualities  of  the  thing  sold,  (not  as  to  its  mere  worth  or  con- 
dition,) the  sale  may  be  treated  as  null,  (m)  This  agree- 
ment of  mind  may  be  expressed  orally  or  by  letter ;  and  in 
the  latter  case,  the  contract  is  complete  when  a  distinct  pro- 
*  position  made  by  letter  is  accepted  by  a  letter  mailed  or 
otherwise  sent  by  the  party  receiving  the  offer,  bond  Jide, 
within  a  reasonable  time,  and  before  he  receives  information 
of  a  withdrawal  of  the  offer.  But  we  have  already  con- 
sidered these  questions  fully,  when  treating  of  assent ;  and 
we  would  refer  in  this  connection  to  what  we  there  said,  (n) 


SECTION  IV. 

THE   EFFECT   OF   A    SALE. 

Upon  a  completed  sale  the  property  in  the  thing  sold 
passes  to  the  purchaser  ;  one  of  these  things  implies  the 
other  ;  if  the  property  passes  then  it  is  a  completed  sale  ;  and 

4  : — '  The  price  agreed  on  between  the  may  be  made  of  an  article  for  what  it  is 

parties  ought  to  be  certain  ;  wherefore  worth,  for  that  can  be  ascertained  by 

a  purchase  is  not  valid  if  it  depends  on  experts.     See  Hoodly  v.  jMcLaine,    10 

the  will  of  the  buyer  or  seller;  though  Bing.  487;   Acebal  v.   Levy,  lb.  382. 

such  price  may  be  well  enough  referred  See  also   Dickson  v.  Jordan,   12  Ire. 

to  the  arbitration  of  a  third  person  to  L.  79. 

adjudge  and  determine  the  value  of  the        (m)  See  Kelly  v.  Solari,  9  M.  &  W. 

thing  sold.'     '  And  thus  the  certainty  of  54  ;  Lucas  v.  Worswick,  1  M.  &  Rob. 

a  price  may  be  had,  either  by  the  deter-  293. 

mination    of    the    contracting     parties         (n)  See  ante,  p.  403,  et  seq.     See  also 

themselves,  or  else  by  relation  had  to  Routledge  v.  Grant,  4  Bing.  653 ;  Bean 

some  person  or  thing.'     In  the  case  at  v.  Burbank,  16  Maine,  458.     Where  a 

bar,  the  referees  have  fixed  the  price,  proposal  to  purchase  goods  is  made  by 

and  according  to  these  authorities,  and  letter  sent  to  another  State,  and  is  there 

the  reason  of  the  thing,  the  sale  should  assented  to,  the  contract  of  sale  is  made 

be  carried  into  effect,   unless  for  some  in  that  State,  and  if  it  is  valid  by  the 

other  objection  which  has  been  made  by  laws  of  the  latter  State,  it  will  be  en- 

the  counsel  for  the  defendant,  it  should  forced  in  the  State  whence  the  letter  is 

be    differently   determined."     See   also  sent,  although  it  would  have  been  in- 

Fiagg  V.  Mann,  2  Sumner,  539:  valid  if  made  there.   Mclntyrc  v.  Parks, 

(/)  Story  on  Sales,  ^   220.    A  sale  3  Met.  207. 

[453] 


441' 


THE   LAW   OF   CONTRACTS. 


[book  III. 


if  a  completed  sale  then  the  property  passes,  (o)  If  it  be 
sold  for  cash,  and  the  price  be  not  paid,  or  if  it  be  sold  on  a 
credit,  but  by  the  terms  of  the  bargain  is  to  remain  in  the 
hands  of  the  vendor,  the  vendor  has  a  lien  on  it  for  the 
price ;  (p)  and  only  payment  or  tender  gives  the  vendee  a 
right  to  possession.  And  if  it  be  sold  on  credit,  and  the  buyer 
by  the  terms  of  the  bargain  has  the  right  of  immediate  pos- 
session without  payment,  but  the  thing  sold  actually  remains 
ill  ^^^  possession  of  the  seller  until  the  credit  has  expired, 
and  the  price  is  still  unpaid,  it  seems  that  the  seller  then  has 
a  lien  for  the  price,  (pp)  If  the  property  passes,  though  not 
the  right  of  possession,  and  the  thing  sold  perish,  the  loss 
falls  on  the  purchaser,  (q)  His  lien  is  destroyed  by  a  delivery 
of  the  goods,  or  by  a  delivery  of  a  part,  without  intention  to 
separate  it  from  the  rest,  but  with  an  intention  thereby  to 
give  possession  of  the  whole,  (r)  If  sold  *for  cash,  and  the 
money  be  not  paid  within  a  reasonable  time,  the   vendor 


(o)  Bayley,  J.,  in  Simmons  v.  Swift, 

5  B.  &  C.  862 ;  Dixon  v.  Yates,  2  Nev. 

6  Mann.  202,  Parke,  J. ;  Atkin  v.  Bar- 
wick,  1  Strange,  167,  where  Fortescue, 
J.,  says  :  —  "  Property  by  our  law  may 
be  divested  without  an  actual  delivery ; 
as  a  horse  in  a  stable."  It  is  exactly 
otherwise  in  the  Roman  civil  law,  and 
the  laws  of  those  nations  in  Europe 
which  adopt  the  civil  law  as  the  basis 
of  their  law.  The  property  (dominium) 
does  not  pass  until  delivery.  Thus,  if 
a  seller  retains  the  thing  sold,  to  be  de- 
livered a  week  hence,  and  in  the  mean 
time  becomes  insolvent,  the  buyer  does 
not  hold  the  thing,  but  it  goes  with  his 
assets  to  the  assignees.  All  the  buyer 
holds  is  a  claim  against  the  seller  for 
the  value  of  the  thing,  and  for  this  debt 
of  the  seller  the  buyer  takes  only  his 
dividend  like  other  creditors ;  for  by  a 
sale  only,  without  delivery,  the  buyer 
acquires  only  a  jus  ad  rem  and  not  a,  jus 
in  re.  See  1  Bell's  Commentaries,  166, 
et  seq.  But  for  the  common  law  rule, 
see  cases  cited  in  next  note ;  also  Noy's 
Maxims,  p.  88 ;  Hinde  v.  Whitehouse, 

7  East,  558,  Lord  Ellenhorough  ;  Com. 
Dig.  Agreement,  B.  3  ;  Tarling  v.  Bax- 
ter, 6  B.  &  C  362. — ISee,  however, 
Bayley  v.  Culverwell,  2  M.  &  Ry. 
566,  note;  Langfort  v.  Tyler,  1  Salk. 
113. 

[454] 


(p)  Bloxam  v.  Sanders,  4  B.  &  C. 
948  ;  Cornwall  v.  Haight,  8  Barb.  328  ; 
Bowen  v.  Burk,  13  Penn.  146.  See 
also  Dixon  v.  Yates,  5  B.  «&  Ad.  313  ; 
Withers  v.  Lyss,  4  Camp.  237  ;  Bush  v. 
Davies,  2  M.  &  S.  397  ;  Langfort  v. 
Tyler,  1  Salk.  113. 

(pp)  New  V.  Swain,  Danson  &  Lloyd's 
Mercantile  Cases,  193. 

(q)  Tarling  v.  Baxter,  6  B.  &  C. 
362.  See  also  Willis  v.  Willis,  6  Da- 
na, 48 ;  Macomber  v.  Parker,  13  Pick. 
183;  Farnum  v.  Perry,  4  Law  Re- 
porter, 276  ;  Crawford  v.  Smith,  7 
Dana,  61. 

(r)  Mere  delivery  of  part  will  not, 
however,  divest  the  vendor  of  his  lien, 
as  to  the  ivhole,  if  any  thing  remains  to 
be  done  by  the  vendor  to  the  part  un- 
delivered. Simmons  v-  Swift,  5  B.  & 
C.  857.  See  on  this  subject  Slubey  v. 
Hfeyward,  2  H.  Bl.  504  ;  Hammond  v. 
Anderson,  4  B.  &  P.  69 ;  Hanson  v. 
Meyer,  6  East,  614;  Ward  v.  Shaw,  7 
Wend.  404 ;  Payne  v.  Shadbolt,  1  Camp. 
427;  Brewer  f.  "Salisbury,  9  Barb.  511. 
Of  course  if  the  vendee  obtains  posses- 
sion by  fraud  he  can  derive  no  rights, 
and  the  vendor  can  lose  none  by  such 
a  deliveiy.  Earl  of  Bristol  v.  Wills- 
more,  1  B.  &  C.  514.  See  also  Hussey 
V.  Thornton,  4  Mass.  405. 


CH.  IV.] 


SALE  OF  PEKSONAL  PROPERTY. 


-441 


may  treat  the  sale  as  null,  (s)  There  may,  however,  be  a 
delay  in  the  payment  justified  by  the  terms  or  the  nature  of 
the  contract. 

The  property  does  not  pass  absolutely  unless  the  sale  be 
completed;  and  it  is  not  completed  until  the  happening  of 
any  event  expressly  provided  for,  or  so  long  as  any  thing  re- 
mains to  be  done  to  the  thing  sold,  to  put  it  into  a  condition 
for  sale,  or  to  identify  it,  or  discriminate  it  from  other  things, 
or  to  determine  its  quantity,  if  the  price  depends  on  this; 
unless  this  is  to  be  done  by  the  buyer  alone,  (t) 

An  agreement  to  sell  is  a  different  thing  from  a  sale,  and 
therefore  no  mere  promise  to  sell  hereafter,  amounts  to  a  pre- 
sent sale ;  so,  an  acceptance  of  a  specific  order  for  certain 
chattels  is  not  itself  a  sale  of  those  chattels  either  to  the 
drawer  or  to  the  party  in  whose  favor  the  order  is  drawn,  (tt) 
And  it  is  always  a  question  of  fact  for  the  jury,  whether  a 
sale  has  been  completed  or  not.  (u) 


(s)  Anonymous,  Dyer,  30,  a.  See 
also  Langfort  v.  Tiler,  1  Salk.  113. 
But  see  Greaves  v.  Ashlin,  3  Camp. 
426,  contra.  See  also  Blackburn  on 
Contract  of  Sale,  p.  328,  et  seq. 

(t)  Tarling  r.  Baxter,  6  B.  &  C.  360 ; 
Gillett  V.  Hill,  2  C.  &  M.  535  ;  Zagury 
V.  rurnell,  2  Camp.  240 ;  Wallace  v. 
Breeds,  13  East,  522  ;  Busk  v.  Davis,  2 
M.  &  S.  397  ;  Shepley  v.  Davis,  5 
Taunt.  617;  Rhode  v.  Thuaites,  6  B. 
&  C.  388 ;  Alexander  r.  Gardner,  1 
Bing.  N.  C  676.  But  where  the  thing 
to  be  done  by  the  vendor  is  hut  trifling, 
or  is  but  a  mathematical  computation, 
this  rule  will  not  apply.  Thus,  where 
there  was  a  sale  of  certain  trees,  at  a 
fixed  price  per  cubic  foot,  and  the  trees 
had  been  all  marked,  and  the  cubical 
contents  of  each  tree  ascertained,  it  was 
held  that  the  property  passed  to  the  pur- 
chaser, although  the  sum  total  of  the 
cubical  contents  had  not  been  ascer- 
tained. Tanslcy  v.  Turner,  2  Bing.  N. 
C.  151,  2  Scott,  238.  The  general  prin- 
ciple stated  in  the  text  is  recognized  in 
the  following  American  cases.  Dixon  v. 
Meyers,  7  Grattan,  240 ;  Ward  v.  Shaw, 


7  Wend.  404  ;  McDonald  v.  Hewett,  15 
Johns.  349 ;  Barrett  v.  Goddard,  3  Mason, 
112;  Rapelye  v.  Mackie,  6  Cowen,  250; 
Russell  V.  Nicoll,  3  .Wend.  112;  Out- 
water  V.  Dodge,  7  Cowen,  85 ;  Stevens 
V.  Eno,  10  Barb.  95  ;  Damon  v.  Osborn, 
1  Pick.  476  ;  Macoraber  v.  Parker,  13 
Pick.  175;  Houdlette  v.  Tallraan,  14 
Maine,  400;  Cushman  v.  Holj-oke,  34 
Maine,  289 ;  Stone  v.  Peacock,  35 
Maine,  385  ;  Colder  v.  Ogden,  15  Penn. 
528  ;  Lester  v.  McDowell,  18  Penn.  91 ; 
Riddle  v.  Varnum,  20  Pick.  280  ;  Davis 
V.  Hill,  3  N.  Hamp.  382.;  Mcsser  v. 
Woodman,  2  Foster,  172;  Warren  v. 
Buckminster,  4  Poster,  337  ;  Crawford 
V.  Smith,  7  Dana,  61.  —  But  it  is  held, 
that  if  the  parties  intended  that  the  sale 
should  be  complete  before  the  article 
sold  is  weighed  or  measured,  the  pro- 
perty will  pass,  before  this  is  done. 
Riddle  v.  Varnum,  20  Pick.  280.  See 
alsoButterworth  v.  McKiulv,  11  Humph. 
206.  But  see  Waldo  v. "Belcher,  II 
Ire.  L.  609. 

(tt)  Burrall  v.  Jacob,  1  Barb.  165. 

(u)  DeRidder  r.  McKnight,  13  Johns. 
294. 

[455] 


442  *  THE  LAW   OF  CONTRACTS.  [BOOK  III. 


SECTION  V. 
OP   POSSESSION   AND   DELIVERY. 

While  as  between  the  parties,  the  property  passes  by  a 
sale,  without  delivery,  it  is  not  valid,  in  general,  as  against  a 
third  party  without  notice,  without  delivery.  For  if  the 
same  thing  be  sold  by  the  vendor  to  two  parties  by  convey- 
*ances  equally  valid,  he  who  first  gets  possession  will  hold 
it.  (uu)  In  general,  where  there  is  a  completed  sale,  and  no 
change  of  possession,  this  retaining  of  possession  by  the 
vendor  is  a  badge  of  fraud,  and  will  avoid  the  sale  in  favor 
of  a  party  who  subsequently  acquires  title  to  the  property  in 
good  faith,  and  with  no  knowledge  of  the  sale.  In  the  days 
of  Mansfield  and  Buller,  possession  retained  by  the  seller  or 
mortgagor  of  chattels  gave  rise  to  an  inference  of  law,  of 
fraud.  This  severe  doctrine  has  certainly  been  held  in  many 
cases  down  to  the  present  day,  both  in  England  and  in  this 
country.  But  the  rule  has  been  much  modified  in  other 
cases.  And  there  seems  now  to  be  a  tendency  to  consider 
the  question  of  fraud  in  all  such  cases  as  a  question  of  fact, 
in  relation  to  which  the  circumstance  of  possession  is  of  great 
weight,  though  not  absolutely  conclusive.  The  question  is 
thus  taken  from  the  court  who  should  infer  it  from  a  single 
fact,  and  is  left  to  the  jury,  who  may  consider  all  the  facts, 
and  determine  how  far  the  fact  of  possession  is  explained, 
and  made  consistent  with  an  honest  purpose,  (y) 

(t(w)  2  Kent's  Com.  522 ;  Dawes  v.  v.   Keniiett,    Cowp.  432  ;  Eastwood  v. 

Cope,  4  Binn.  258;  Babb  v.  Clemson,  Brown,  Ey.  &Moo(l.  312;  Kidd  v.  Raw- 

10  S.*&  R.  419 ;  Fletcher  v.  Howard,  2  linson,  2  B.  &  P.  59 ;  Cole  v.  Davies,  1 

Aikens,  115.  Lord   Raym.   724;    Lady   ArundcU   v. 

(v)  Although  few  questions  in  the  Phipps,  10  Ves.  1403  Watkins  i'.  Birch, 
law  present  a  greater  conflict  of  author-  4  Taunt.  823;  Latimer  i-.  Batson,  4  B. 
ities  than  this,  we  believe  that  reason,  &  C.  652  ;  Steward  v.  Lombe,  1  Brod. 
analog}',  and  the  current  of  modern  au-  &  Bing.  50G  ;  Wooderman  v.  Baldock, 
-thority,  both  English  and  American,  8  Taunt.  676 ;  Iloft'man  v.  Pitt,  5  Esp. 
support  the  principle  laid  down  in  the  22  ;  Armstrong  v.  Baldock,  Gow,  33 ; 
text.  The  subject  is  ably  examined  in  Storer  v.  Hunter,  3  B.  &  C.  368 ;  Land 
2  Kent's  Com.  515, ,ef  seq ;  and  Smith's  v.  JeftVics,  5  Rand.  21 1 ;  Terry  v.  Belch- 
Leading  Cases,  (4th  Am.  ed.)  vol.  1,  p.  er,  1  Bailey,  568 ;  Howard  v.  Williams, 
1,  et  seq.  The  following  autliorities  Id.  575;  Smith  v.  Henry,  2  Id.  118; 
adopt  the  view  of  the  text.     Cadogan  Callen  v.  Thompson,  3  Ycrg.  475 ;  Ma- 

[456] 


CH.  IV.] 


SALE  OF  PERSONAL  PROPERTY. 


443 


The  delivery  may  be  symbolical,  or  of  a  part  for  the 
whole;  (vv)  and  a  delivery  of  the  key,  the  property  being 
locked  up,  is  so  far  a  delivery  of  the  goods,  that  it  will  sup- 
port an  action  of  trespass  against  a  subsequent  purchaser 
who  gets  possession  of  them,  (iv)  Marking  timber  on  a 
wharf,  or  goods  in  a  warehouse,  operates  as  a  delivery ; 
goods  bought  in  a  shop,  weighed  or  measured,  and  separated, 
and- left  by  the  owner  until  called  for,  are  sufficiently  de- 
livered  ;  (x)  and  horses  bought  at  livery,  and  remaining  at 
livery  with  the  seller  at  his  request,  are  said  to  be  delivered 
to  the  buyer,  (y)     This  last  case  has  been  questioned,  but  it 


ney  i'.  Killouch,  7  Id.  440;  Mitchell  v. 
Beal,  8  Id.  142;  Baylor  v.  Smitliers,  1 
Litt.  112;  Goldsbury  v.  Mav,  Id.  256  ; 
Hundley  v.  Webb,  3  J.  J.  Marsh.  643; 
WaLsh  V.  Medley,  1  Dana,  2G9;  Bissell 
i'.  Hopkins,  3  Cow.  166;  Thompson  v. 
Blanchard,  4  Corns.  303 ;  Griswold  v. 
Sheldon,  Id.  .580;  Brooks  y.  Powers,  15 
Mass.  244  ;  Bartletty.  Williams,  I  Pick. 
288 ;  Homes  v.  Crane,  2  Id.  607 ; 
Wheeler  v.  Train,  3  Id.  255  ;  Adams 
V.  Wheeler,  10  Id.  199  ;  Marden  v.  Bab- 
cock,  2  Met.  99  ;  Haven  i'.  Low,  2  New 
Hamp.  13;  Kendall  v.  Fitts,  2  Foster, 
1;  Walcott  V.  Keith,  Id.  198;  Coburn 
V.  Pickerinir,  3  Id.  415  ;  Clark  v.  Morse, 
10  Id.  239^  Reed  v.  Jewett.  5  Greenl. 
96  ;  Cutter  v.  Copeland,  18  Maine,  127  ; 
Comstock  V.  Kavford,  12  S.  &  M.  369; 
Field  V.  Simco^  2  Eng.  [Ark.]  269  ; 
Erwln  V.  Bank  of  Kentucky,  5  Louis. 
Ann.  1  ;  Collins  v.  Pellerin,  5  Louis. 
Ann.  99;  Bryant  v.  Kelton,  1  Tex.  415. 
—  It  must  lie  confessed,  however,  that 
there  is  a  host  of  decisions  in  support 
of  the  op]50sitc  principle,  and  that  it 
still  has  the  sanction  of  very  sound, 
respectable,  and  learned  courts.  The 
doctrine  was  first  laid  down  in  Twyne's 
case,  3  Coke,  87,  and  has  since  been  re- 
cognized or  adopted  in  the  following 
among  other  cases.  Edwards  r.  Har- 
ben,  2  T.  K.  587  ;  Paget  v.  Perchard,  1 
Esp.  205  ;  WordcU  v.  Smith,  1  Camp. 
332 ;  Keed  v.  Wilmott,  5  M.  &  P.  553  ; 
Hamilton  v.  Bussell,  1  Cranch,  309; 
Alexander  v.  Deneale,  2  Munf.  341  ; 
Kobertson  v.  Ewell,  3  Id.  I  ;  Kennedv 
V.  Ross,  2  Rep.  Con.  Ct.  125;  Hudnal 
V.  Wilder,  4  McCord,  294  ;  Ragan  v. 
Kennedy,  1  Overt.  91  ;  Brnmmel  v. 
Stockton,  3  Dana,  134  ;  Laughliu  v.  Fer- 

VOL.  I.  39 


guson,  6  Id.  117;  Young  v.  McClure, 
2  W.  &  S.  147;  Brady  v.  Haines, 
18  Pcnn.  113;  Bowman  v.  Herring,  4 
Harring.  458  ;  McBride  v-  McClelland, 
6  Id.  94 ;  Tliornton  v.  Davenport,  1 
Scammon,  296  ;  Chumar  v.  AVood,  1 
Ilalst.  155;  Patton  v.  Smith,  5  Conn. 
Rep.  196;  Weeks  v.  Wead,  2  Aikens, 
64;  Beattie  v.  Robin,  2  Verm.  181; 
Farnsworth  v.  Shcpard,  6  Verm.  521  ; 
W^ilson  V.  Hooper,  12  Verm.  653  ; 
Hutchins  v.  Gilchrist,  23  Verm.  82 : 
Gibson  v.  Love,  4  Flor.  217;  Sturte- 
vant  V.  Ballard,  9  Johns.  337.  —  But 
in  those  courts  where  the  doctrine  of 
Twyne's  case  has  been  received  with 
favor,  the  rule  has  not  been  applied  to 
sales  on  execution,  which  are  in  their 
nature  ]Hibli(;  and  notorious.  Simer- 
son  V.  Branch  Bank,  12  Ala.  205  ;  Gar- 
land V.  Chambers,  U  Sm.  &  Marsh. 
337;  Foster  r.  Pugh,  12  Id.  416;  Ab- 
ney  v.  Kingsland,  10  Ala.  355. 

(cv)  See  Chamberlain  v.  Farr,  23 
Verm.  265  ;  Brewer  v.  Salisbury,  9 
Barb.  511. 

(w)  Chappel  v.  Marvin,  2  Aikens, 
79. 

(or)  So  selecting  and  marking  sheep, 
then  in  the  possession  of  one  who  was 
recpicstcd  by  the  vendee  to  retain  pos- 
session of  them  for  him,  is  a  sufficient 
delivery.  Barney  v.  Brown,  2  Verm. 
374. 

(>/)  Elmore  v.  Stone,  1  Taunt.  458. 
But  see  the  subsequent  case  of  Carter 
V.  Toussaint,  5  B.  &  Aid.  855.  In  that 
case,  a  horse  was  sold  by  verbal  con- 
tract, but  no  time  was  fixed  for  the  pay- 
ment of  the  price.  The  horse  was  to 
remain  with  the  vendors  for  twenty 
days  without  any  charge  to  the  vendee. 

[457] 


444*  THE    LAW    OF   CONTRACTS.  [bOOK  III. 

seems  to  come  under  the  general  analogy,  for  the  purchaser 
incurs  at  once  a  liability  for  Iheir  keeping.  It  is  true,  how- 
ever, that  later  cases  apply  a  stricter  rule  than  formerly  to 
constructive  delivery;  and  the  presumption  of  delivery  is  not 
to  be  favored,  because  it  deprives  the  seller  of  his  lien  with- 
out payment,  {z)  But  if  goods  are  sent,  even  under  a 
contract  of  sale,  to  be  applied  by  the  receiver  (who  was  to  be 
the  buyer,)  to  a  particular  purpose,  (as  *to  take  up  certain 
bills  of  exchange,)  to  which  purpose  they  were  not  and  could 
not  be  applied,  the  sender  does  not  lose  his  property  in  them 
by  the  delivery,  but  may  recover  them  back,  (a)  And  if 
property  be  awarded  to  one  by  arbitrators,  at  a  certain  price, 
the  tender  of  the  price  does  not  pass  the  property,  unless  the 
other  party  accept  the  price,  (b) 

It  is  sometimes  a  question  of  interest  what  is  the  duty  of 
the  seller  as  to  delivery  of  the  articles  sold,  and  as  to  keeping 
them  until  delivery ;  and  also  what  is  the  duty  of  the  vendee 
as  to  receiving  them.  Usage  determines  this  in  a  consider- 
able degree;  but  from  the  general  usage  and  the  adjudica- 
tions some  rules  may  be  deduced. 

If  no  time  be  appointed  for  delivery,  or  for  payment,  these 
acts  must  be  done  within  a  reasonable  time  ;  and  if  neither 
party  does  any  thing  within  that  period,  the  contract  is 
deemed  to  be  dissolved,  (c)  If  the  goods  are  to  be  delivered 
when  requested,  the  purchaser  may  sue  for  non-delivery 
without  proving  a  request,  provided  the  seller  have  incapaci- 


At   the   expiration  of    that    time,   the  Zii'c?7/ good  at  common  law,  which  would 

horse  was  sent  to  grass,  by  the  direction  not  amount  to  an  acceptance  within  the 
of  the  vendee,  and  by  his  desire  entered  ,  statute  of  frauds. 

as   the   horse  of  one   of  the   vendors.  {a}  Moore  i?.  Barthop,  1   B.  &  C.  5  ; 

Upon  these  facts  the  courts  held  that  Thompson   v.    Tiles,  2    B.  &  C.  422 ; 

there  was  no  acceptance  of  the  horse  by  Giles  v.  Perkins,  9   East,  12  ;    Bent  v. 

the  vendee  within  the  statute  of  frauds.  Puller,  5  T.  R.  294;  Zinck  v.  Walker, 

Although  Elmore   v.    Stone   has   been  2  W.  Bl.    1154;   Parke  v.    Eliason,   1 

much  doubted,  it   seems  not   to   have  East,  544. 

been  expressly  overruled.  See  Smith  (/;)  Hunter  v.  Rice,  15  East,  100. 
V.  Surman,  9  B.  &  C.  570,  Bayley,  J.  And  Lord  Ellenhorough  said  : —  •'  There 
(.;)  Dole  V.  Stimpson,  21  Pick.  384.  is  a  difference  between  property  award- 
See  also  Tempest  v.  Fitzgerald,  3  B.  &  ed  to  be  transferred  by  the  owner  to 
Aid.  680 ;  Baldey  v.  Parker,  2  B.  &  C.  another,  and  that  which  is  actually 
37.  But  these  cases  arose  under  the  transferred  by  the  contract  of  the  owner 
statute  of  frauds,  and  turned  upon  what  through  the  medium  of  his  agent." 
was  a  sufficient  acceptance  within  that  (c)  Langfort  v.  Tiler,  1  Salk.  113. 
act.    But  there  may  be,  perhaps,  a  de-  And  see  Lanyon  v.  Toogood,  13  M.  & 

[458] 


CH.  IV.]         SALE  OF  PEESONAL  PROPERTY.  *445 

tated  himself  from  delivering  them,  as  by  resale  or  the  like,  (d) 
but  ill  general  a  request  must  be  made  before  the  seller  can 
be  sued  for  non-delivery,  (dd)  And  if  the  vendee,  either  by 
the  express  terms  of  the  contract  or  from  its  nature,  is  to 
designate  the  manner  or  place  of  delivery,  he  must  do  this 
before  he  can  maintain  his  action,  (e)  If  a  day  be  fixed 
either  for  delivery  or  payment,  the  party  has  the  whole  of  it; 
and  if  any  one  of  several  days,  the  whole  of  all  of  them.  It  is 
said  he  must  endeavor  to  do  the  needful  act  at  a  convenient 
hour  before  midnight ;  early  enough,  for  instance,  for  the 
other  party  to  count  the  money,  or  examine  the  goods,  and 
give  a  receipt;  but  this  very  general  rule  does  not  seem  any- 
where defined.  If  on  a  certain  day,  at  a  certain  place,  then 
it  must  be  done  at  a  convenient  time  before  sunset,  because 
the  presence  of  the  other  party  is  necessary  *and  the  law 
does  not  require  him  to  be  there  through  the  twenty-foux 
hours,  (ee) 

The  seller  is  to  keep  the  thing  sold  until  the  time  for  de- 
livery, with  ordinary  care,  and  is  liable  for  the  want  of  that 
care,  or  of  good  faith  ;  but  if  he  does  so  keep  it,  he  is  not  lia- 
ble for  its  loss,  (ef)  unless  it  perish  through  a  defect  against 
which  he  has  warranted.  If  the  parties  are  distant  from  each 
other,  the  seller  must  follow  the  directions  of  the  buyer  as  to 
the  way  of  sending  the  thing  sold  to  him,  and  then  a  loss  in 
the  transportation  will  fall  on  the  buyer,  (/)  unless  attributa- 

W.  27  ;    Fletcher  v.    Cole,   23  Verm,  the  rosin  being  destroyed  by  fire  after 

114.  the  end  of  the  week,  it  was  held  that  A. 

{d)  Bowdell  V.  Parsons,  10  East.  359 ;  was  bound  to  call  during  the  week ;  that 

Amory  v.  Brodrick,  5  B.  &  Aid.  712.  B.  was  not  bound   to  set  apart  for  A. 

(eld)   Bach  v.  Owen,  5    T.    U.   409.  any  specific  three  hundred  barrels,  and 

See  Radford  v.  Smith,  3  M.  &  W.  254  ;  that  A.  having  failed    to   perform  his 

Benners  v.  Howard,  1   Taylor,  149. —  part  of  the  contract,  could  not  recover 

As  to  a  demand  by  a  servant,  sec  Squier  against  B.  either  upon  the  contract  to 

V.  Hunt,  3  Price,  68.  deliver  or  for  money  had  and  received, 

(e)  See  West   v.   Newton,    1    Duer,  to    recover   the   purchase-monev   paid. 

277  ;  Armitage  v.  Insole.  14  Q.  B.  728.  Willard  v.  Perkins,  1  Busbee's  Law  R. 

(ee)  See  Startup  v.  McDonald,  2  M.  (N.  C.)  253. 
&  Gr.  395.  (  f)  Vale  v.  Bavle,  Cowp.  294.     In 

{cf)  Where  A.  bought  of  B.  three  Godfrey  i-.  Furzo,  3  P.  Wms.  186.  and 

hundred  barrels  of  rosin  "  to  be  deliver-  in   Vale   v.  Bayle.   supra.   Lord    Chief 

ed  when  called  for  within  a  week,"  and  Justice  Eyre  is  said  to  have  held,  "  That 

paid  for  the  same,  and  within  a  week  B.  though  a  trader  in  the  country  docs  not 

manufactured  more  than  that  quantity,  appoint  a  carrier,  yet  if  the  goods  be 

which  he  had  ready  for  delivery,  but  did  embezzled  he   shall  be   lial)le,  because 

not  set  apart  any  specific  quantity  for  A.,  he  leaves  it  in  the  breast  of  the  person 

[459] 


446  •  THE   LAW   OF   CONTRACTS.  [BOOK  III. 

ble  to  the  negligence  of  the  seller;  if  the  seller  disregards 
such  orders,  the  loss  in  transportation  falls  on  him,  though  it 
do  not  happen  through  his  neglect.  If  the  directions  be 
general,  as,  "  by  a  carrier,"  without  naming  any  one,  usual 
and  proper  precautions  must  be  taken,  and  will  protect  the 
seller,  (g)  And  it  is  a  part  of  his  duty  to  give  such  notice 
of  the  sending  them  by  ship  or  otherwise  as  will  enable  the 
buyer  to  insure  or  take  other  precautions,  (h)  If  the  con- 
tract be  to  deliver  the  thing  ordered  at  the  residence  or  place 
of  business  of  the  buyer,  the  seller  is  liable,  although  such 
delivery  becomes  impossible,  unless  it  becomes  so  through 
the  act  of  the  buyer.  (?')  If  the  seller  refuse  to  deliver  it  at  a 
*tirae  and  place  agreed  on,  and  it  perish  afterwards  without 
his  fault,  he  is  liable  for  it.  But  if  he  be  ready,  and  the 
vendee  wrongfully  refuse  or  neglect  to  receive  it,  the  seller  is 
not  liable,  unless  the  thing  perishes  through  his  gross  and 
wanton  negligence.  And  if  the  vendee  unreasonably  neglect 
or  refuse  to  comply  with  conditions  precedent  to  deli- 
very, or  to  receive  the  goods  on  delivery,  the  seller  may, 
after  due  delay  and  proper  precautions,  resell  them,  (and 
it  seems  to  be  a  common  usage  to  sell  them  at  auc- 
tion,) and  hold  the  buyer  responsible  for  any  deficit  in  the 


to  whom  he  gives   the  order  to  send  fie  instructions  to  insure  in  any  particu- 

thera  bv  whom  he  pleases."     The  car-  lar  case,  he  is  bound  to  insure.     Id. ; 

rier  is  "generally  considered  the  agent  Lond.  Law  Mag.  vol.  4,  p.  359.     And 

of  the  buyer,  and  not  of  ihe  seller.    Dut-  see  Smith  v.  Lascellcs,  2  T.  R.  189. 
ton  V.  Solomonson,  3  B.  &  P.  584  ;  An-         (/)  Hayward  v.   Scougall,    2    Camp, 

derson  v.  Hodgson,  5  Price,  630.     As  56,  and  note;  Atkinson  v.  Ritchie,  10 

soon,  therefore,  as  the  goods  are  in  the  East,  530 ;  De  Medeiors  v.  Hill,  5  C.  & 

due  and  regular  course  of  conveyance,  P.  182.     It  was  here  held  that  where  a 

they  are  at  the  risk  of  the  purchaser,  shipowner,  knowing  that  a  port  is  block- 

and  not  before.     UUock  v.  Reddelein,  aded,  enters  into  a  contract  with  a  mer- 

Dan.  &  Lloyd,  6.  chant  for  the  delivery  of  a  cargo  there, 

{q)  The  Vendor,  in  delivering  goods  if  he  afterwards  refuses  to  go,  he  is  lia- 
to  a  carrier,  must  exercise  due  care  and  ble  to  an  action  for  the  breach  of  the 
diligence,  so  as  to  provide  the  consignee  contract ;  but  whether  the  damages  are 
with  a  remedy  over  against  the  carrier,  to  be  nominal  or  otherwise  must  de- 
See  Buckman  r.  Levi,  3  Camp.  414;  pend  upon  the  opinion  of  the  jury,  as  to 
Clarke  1-.  Hutchins,  14  East,  475  ;  Alex-  whether,  if  the  vessel  had  gone  to  the 
ander  v.  Gardner,  1  Bing.  N.  C.  671  ;  place,  she  would  have  been  able  to  get 
Dawes  v.  Peck.  8  T.  R.  330.  in. —  So  it  is  no  defence  to  a  breach  of 

(/()  Cothay  v.  Tute,   3    Camp.  129;  a  contract  to  deliver  certain  goods  at  a 

Brown  on  Sales,  §  52G ;  2  Kent's  Com.  certain  time,  that  such  goods  could  not 

500. —  If  it  has  been  the  usage  between  be  had  in  the  market  at  that  time.     Gil- 

the  parties,  in   former  dealings,  for  the  pins  i'.  Conscqua,  Pet.  C.  C.  85;   You- 

vendor  to  insure,  or  if  he  receive  spcci-  qua  v.  Nixon,  Id.  22L 

[460] 


CH.  IV.]         SALE  OF  PERSONAL  PROPERTY.  *447 

price,  (j)  If  the  seller  sell  on  credit,  the  goods  are  to  be 
delivered  without  payment;  but  if  the  buyer  becon:ie  insolvent 
before  the  time  of  delivery,  the  seller  may  demand  security, 
and  refuse  to  deliver  the  goods  without  it.  (k)  If  no  place 
of  delivery  be  specially  expressed  in  the  contract,  the  store, 
shop,  farm,  or  warehouse,  where  the  article  is  sold,  made, 
grown,  or  deposited,  is  in  general  the  place  of  delivery.  (/) 
If  expressly  deliverable  to  the  vendee,  but  no  place  is  named, 
it  may  be  delivered  to  him  where  he  is,  or  at  his  house,  or  at 
his -place  of  business,  except  so  far  as  this  option  of  the  seller 
is  controlled  by  the  nature  of  the  article.  For  if  the  pur- 
chaser bought  a  load  of  cotton  to  be  worked  in  his  mill,  it 
cannot,  under  an  agreement  of  delivery,  be  delivered  at  his 
distant  dwelling-house;  nor  should  a  load  of  hay  for  his  stable, 
or  a  cooking  range  for  his  kitchen,  be  delivered  at  his  store 
on  the  wharf.  Some  cases  distinguish  between  the  duty  of 
delivery  arising  from  a  contract  of  sale,  and  a  contract  to  de- 
liver goods  in  payment  of  a  precedent  debt.  In  the  first  case 
*the  buyer  must  take  them  where  they  are,  and  in  the  latter 
the  owner  must  deliver  them  at  such  place  as  shall  be  rea- 
sonable from  the  nature  of  the  case,  or  shall  be  pointed  out 
by  the  party  receiving  them,  (m)  But  in  the  latter  case,  if 
the  contract  be  merely  that  the  creditor  "  may  have  them," 
with  no  words  or  acts  implying  that  they  were  to  be  carried 
to  him,  it  should  be  enough  if  they  are  ready  for  him  when 
he  comes  for  them.     There  seems  to  be  also  a  distinction  be- 


(j)  Maclean  V.  Dunn,  4  Bing.  722;  Watts    &    Serg.    295.     If,   however,    a 

Mertens  I'.  Adcock,  4  Esp.  251 ;   Girard  particular   place   be    appointed  by  the 

V.  Taggart,  5  S.   &  II.   19  ;    Sands  v.  contract,  the  goods  must  be   delivered 

Taylor,  5  Johns.  395.  there  before  an  action  will  lie  for  their 

n\  rr^„i  „      TiT„ir„   „     a     k   n^   -o  price.     Savajre  Man.  Co.  i'.  Armstrong, 

[k]   looke  u.  Holbngwortn,  5    i.  K.  '      ,,,  .        ,7„      tt  i        tvt-  J?A 

OIK       Av.,1  =.„„ -ni^^.^         «„„,q„„-  A  Ti  19  Mame,  147;    Howard  v.  Miner,  20 

215.     And  see  Bloxam  i;.  banders,  4  15.  ,,  .  ',        '  ' 

&  C.  948;    Hanson  v.  Mover,  6  East,  ^'^aine,  .i-D.  ,p  ,t  •       ,„ 

614.     And  if  the  seller  has  dc'spatehed  ,   ("0  Bean  z;.  Simpson    16  Mamo  49. 

the  goods  to  the  buyer,  and  he  becomes  J"  ^'"^  S'^f  }\  ^,f  '"'"^ '^^\  '/  ''y^f'' 

insolvent,  the  seller  has  a  right,  by  vir-  ^."^  "PPO.nted  m  the  contract  for  the  de- 

tue  of  his  original  ownership,  to  stop  ^'f '7  °/  .T'l""  "     ^    '  '  •  ''     f    ^  ^ 

the  goods  if  ;et  in  transitu.   ^Mason  r.  ^^  '^^^  f^^^f  ^^  ascertam  from  the  ere- 

T  ;,.i.v.ov,.r>,.,    1    xj    T3I     "K-      7?ii-  ditor  where  he  would  receive  tlie  goods; 
i-iieKDaiiow,    1    U.    Jil.    o5<  ;    Ellis    v.  i  -r  .i  •     i  Tj  .i      ^S.     e.^V 

Hunt  3  T   R  464  '"^'^  ^     done,  tlie  mere  tact 

'         •      •        •  jjj,^j  jljg  debtor  had  the  articles  at  his 

(/)  2  Kent's  Com.  505 ;    Lobdell  v.  own  dwelling-house  at  that  time  is  no 

Hopkins,  5  Cow.  516;  Goodwin  v.  Hoi-  defence.     And  see  Bixby  v.  "Whitney, 

brook,  4  Wend.  380;  Barr  v.  Myers,  3  5  Grcenl.  192. 

39*  [461J 


448  *  THE  LAW    OF    CONTRACTS.  [BOOK  III. 

tween  the  case  of  very  cumbersome  goods  and  those  more 
easily  portable ;  and  the  seller  is  held  rnoro  strictly  to  the 
duty  of  transporting  the  latter,  and  tendering  them  in  spe- 
cie, (n) 

In  general,  if  any  thing  be  ordered  of  a  mechanic  or  manu- 
facturer, the  maker  may  deliver  it  where  he  makes  it,  unless 
he  have  a  shop  or  depository  where  his  manufactured  arti- 
cles are  usually  taken  for  sale  or  delivery,  in  which  case 
such  place  may  be  the  place  of  delivery. 

The  vendee  is  bound  to  receive  and  pay  for  the  thing  sold 
at  the  time  and  place  expressed  or  implied  in  the  contract  of 
sale,  and  to  pay  all  reasonable  charges  for  keeping  it  after 
sale  and  before  delivery,  (o)  And  if  he  refuse  so  to  take  or 
pay  for  the  goods  sold,  he  will  be  liable  in  an  action  for  the 
price,  or  in  a  special  action  for  damages,  unless  he  can  show 
incapacity  to  contract,  or  sufficient  error,  duress,  or  fraud. 

When  payment  of  a  debt  is  to  be  made  by  some  specific 
article,  it  is  not  quite  settled  where  the  article  is  to  be  de- 
*livered;  whether  by  the  payor  at  his  own  residence  to  the 
payee  who  must  come  for  it,  or  to  the  payee  at  his  residence  or 
place  of  business,  whither  the  payor  must  carry  it.  It  might 
seem  from  some  statements  that  local  usages  affect  or  decide 
this  question  in  some  cases.  And  possibly  the.distinction 
between  bulky  and  portable  articles  might  be  carried  so  far 
as  to  lead  to  the  conclusion  that  one  who  has  thus  to  deliver 
an  article  easily  carried,  as  a  watch  or  a  book,  might  be 
bound  to  take  it  to  the  payee.  But  we  consider  the  law  in 
general  to  be,  that  it  is  enough  if  the  payor  delivers  the  arti- 
cle at  his  own  residence  or  shop.  And  if  he  there  tenders  it 
to  the  payee,  and  it  be  in  all  respects  the  article  he  should 
have  tendered,  and  the  payee  refuse  or  neglect  to  receive  it, 

(n)  Stone  v.   Gilliam,  1  Show.  149  :  ants  the  wool  lying  unsacked  in  three 

Currier  v.   Currier,  2  New  Harap.  75  ;  rooms,  to  be  paid  for  upon  delivery,  the 

2  Kent's  Com.  508.  quantity  to  be  ascertained  by  weighing, 

(o)  In  Cole  V.  Kerr,  20  Verm.  21,  it  but  without  any  express  contract  as  to 
•wa,s  held  that  there  is  no  implied  con-  who  should  be  at  the  expense  of  sack- 
tract  upon  the  sale  of  personal  property  ing ;  the  plaintiffs  sacked  the  wool  in 
that  the  vendee  shall  pay  the  vendor  saclis  furnished  by  the  defendants,  and 
for  any  services,  in  relation  to  the  pro-  then  caused  it  to  be  weighed  and  sliip- 
perty,  rendered  previous  to  the  comple-  ped  to  the  defendants  ;  and  it  was  held, 
tion  of  the  sale  by  delivery.  In  this  that,  as  the  sacking  preceded  the  deli- 
case  the  plaintiflFs  sold  to  the  defend-  very  of  the  wool,  the   law  would  not 

[462] 


CH.  IV.]  SALE  OF  PERSONAL  PROPERTY.  *449 

with  no  valid  objection  grounded  on  the  article  itself,  or  on  a 
stipulation  in  the  contract,  then  the  payor  is  no  farther  re- 
sponsible for  what  may  happen  to  it.  If  it  were,  for  instance, 
a  carriage,  and  he  had  tendered  it  as  it  stood  in  his  barn  or 
warehouse,  he  would  have  no  right — certainly  none  with- 
out sufficient  notice  to  the  payee,  —  to  roll  it  out  into  the 
street,  and  there  let  it  perish.  For  this  would  be  a  wanton 
injury.  But  if  it  was  in  the  street  when  he  tendered  it,  and 
he  said,  I  offer  it  to  you  as  your  carriage,  and  I  shall  have  no 
more  to  do  with  it,  he  would  not  be  bound  to  take  any  far- 
ther care  of  it. 

But  questions  of  this  kind  generally  arise  in  the  defence  to 
actions  founded  upon  such  contracts;  and  we  shall  again 
consider  the  subject  of  contracts  for  the  delivery  of  specific 
articles,  in  our  secor»d  volume,  under  the  head  of  Defences. 


SECTION  VI. 

CONDITIONAL   SALES. 

In  every  sale,  unless  otherwise  expressed,  there  is  an  implied 
condition  that  the  price  shall  be  paid,  before  the  buyer  has  a 
right  to  possession  ;  and  this  is  a  condition  precedent,  (p) 
But  it  seems  that  in  an  action  for  non-delivery  the  buyer 
*need  only  aver  that  he  was  readij  and  willing  to  receive  and 
pay  for  them,  and  a  refusal  to  deliver,  without  averring  an 
actual  tender,  [q)     But  where  the  right  to  receive  payment 

imply  a  contract  on  the  part  of  tlie  de-  will   fall  on  the   purchaser.     Willis  v. 

fendants  to  pay  the  plaintiffs  for  sack-  Willis,  6  Dana,  49;  Winj,^  v.  Clark,  24 

ing.  Maine,  3C6  :  Pleasants  v.  rendleton,  6 

(/))  See  Noy's  Maxims,  p.  88,  where  Rand.  473.  Seealsoa//^e,  p.*  441,n,  (o,) 

it  is  said  :  —  '"If  I  sell   my   horse  for  el  seq. 
money,  I   may  keep   him  until  I  am 

paid."     See  also  Hinde  v.  Whitcliouse,  (q)  Watcrhouse   v.  Skinner,  2  B.  «& 

7  East,  571  ;  Cornwall  I'.  Haiglu,  8  Barb.  P.  447;    Rawson   r.  Joiinson,  1   East, 

328. —  This  implied  condiiion  that  the  203.     The  case  of  Morton  v.  Lamb,  7 

price  shall  be  paid  before  delivery  is  said  T.  R.  125,  is  not  inconsistent  wiih  the 

to  give  the  vendor  a  lien  on  the  article  doctrine  laid  down  in  the  text,  as  it  is 

sold  until  the  payment.  —  But  although  explained    by   the   subsequent   case   of 

the  vendee   may  not  have  a   right  of  Rawson  v.  Johnson,  1  East,  203.     And 

possession  in  the  article  bought  until  tiie  tliere  are  many  cases  where  readiness  to 

price  is  paid,  yet  the  right  of  propeiiij  perform  is  equivalent    to   pcribrniance. 

passes  bjithe  bargain;  and  if  the  proper-  Tlius  in  the  case  of  West  r.  Emmons, 

ty  is  lost  while  yet  in  the  possession  of  5  Johns.  179,  A.  covenanted  to  convey 

the  vendor,  without  his  fault,  the  loss  by  a  good  and  sutKcient  deed  u  certain 

[463] 


-449 


THE   LAW   OF   CONTRACTS. 


[book   III. 


before  delivery  is  waived  by  the  seller  and  immediate  pos- 
session given  to  the  purchaser  and  yet  by  express  agreement 
the  title  is  to  remain  in  the  seller  until  the  payment  of  the 
price  upon  a  fixed  day,  such  payment  is  strictly  a  condition 
precedent  and  until  performance  the  right  of  property  is  not 
vested  in  the  purchaser,  [qq)  And  generally,  wherever  in  a 
contract  of  sale,  it  is  stated  that  some  precise  fact  is  to  be 
done  by  either  party,  this  may  amount  to  a  condition,  though 
not  so  expressed.     As,  where,  in  a  contract  for  sale  of  goods, 


lot  of  land  to  B.,  on  or  before  a  certain 
day,  and  B.  covenanted  to  reconvey  the 
same  to  A.  by  a  mortgap;e,  at  the  same 
time,  as  security,  and  also  to  execute  a 
bond  for  the  consideration  money ;  and 
B.  afterwards  brought  his  action  of 
covenant  against  A.,  and  in  his  declara- 
tion averred  that  he  was,  at  the  time, 
and  always  had  been,  ready  to  execute 
the  mortgage  and  bond,  &c.  It  was 
held,  that  the  covenants  were  mutual 
and  dependent ;  that  the  averment  of 
readiness  to  perform  by  the  plaintiff  was 
sufficient;  and  that,  from  the  nature  of 
the  covenant,  he  was  not  bound  to  seal 
and  tender  the  mortgage  before  A.  had 
conveyed  the  land  to  him,  or  had  offered 
a  conveyance.    See  also  Miller  v.  Drake, 

I  Caines,  45 ;  Peeters  v.  Opie,  2  Wms. 
Saund.  350,  and  n.  3. 

(qq)  Porter  v.  Pettcngill,  12  New 
Hamp.  299  ;  Sargent  v.  Gile,  8  New 
Hamp.  325;  Gambling  v.  Read,  1  Meigs, 
281 ;  Bigelow  v.  Huntley,  8  Verm.  151  ; 
Barrett  v.  Pritchard,  2  Pick.  512:  Ayer 
V.  Bartlett,  9  Pick.  156;  Tibbetts  v. 
Towle,  3  Fairf.  341 ;  Bennett  v.  Sims, 
Rice,  421  ;  Smith  v.  Lynes,  1  Selden, 
41  ;  Parris  v.  Roberts,  12  Ire.  L.  268; 
Smith  V.  Foster,  18  Verm.  182;  Buck- 
master  V.  Smith,  22  Verm.  203 :  Root 
V.  Lord,  23  Verm.  568 ;  Aubin  i'.  Brad- 
ley, 24  Verm.  55  ;  Buson  v.  Dougherty, 

II  Humph.  50.  In  most  of  these  cases 
the  question  whether  the  property  had 
passed  arose  between  the  parties  tliem- 
selves  or  between  the  vendor  and  at- 
taching creditors  of  the  conditional  ven- 
dee, and  the  weight  of  authority  is  as 
above.  And  in  Sargent  v.  Gile,  8  N. 
H.  325,  such  a  conditional  sale  was  held 
to  leave  the  right  of  property  in  the 
vendor  against  subsequent  bona  fide  pur- 
chasers from  the  conditional  vendee,  on 
the  evident  ground  that  the  vendee  had 
no  power  to  transfer  any  right  not  his 

[464] 


own.  The  same  view  appears  to  be 
taken  by  Waskinqton,  J.,  in  Copland  v. 
Bosquet,  4  Wash.  C.  C.  594.  But 
Haggerty  v.  Palmer,  6  Johns.  Ch.  437  ; 
Keeler  v.  Field,  1  Paige,  315  ;  and 
Smith  V.  Lynes,  1  Selden,  41,  seem  to 
have  settled  it  for  New  York  law  that 
such  hond  Jicle  purchaser  without  notice 
of  the  conditional  sale  holds  the  pro- 
perty. And  in  Martin  v.  Mathiot,  14 
Serg.  &  R.  214 ;  Rose  v.  Story,  1  Barr, 
190,  it  is  decided  that  although  under 
a  conditional  sale  the  property  does  not 
pass  to  the  vendee,  as  between  the  par- 
ties, yet  that  such  condition  is  fraudulent 
and  void  as  to  creditors  of  the  vendee 
who  may  seize  and  hold  the  property 
upon  execution.  And  at  all  events  if 
an  unconditional  bill  of  sale  be  given 
and  the  conditional  vendee  be  thus  in- 
vested with  all  the  indicia  of  ownership, 
the  vendor  is  estopped  to  set  up  the  con- 
dition against  a  purdiaser  in  good  faith, 
for  valuable  consideration.  Davis  v. 
Bradley,  24  Verm.  55.  And  whenever 
a  vendor  in  a  conditional  sale  claims 
the  property  against  the  creditors  of  the 
vendee,  the  burden  of  proof  is  upon  him 
to  show  the  condition  and  that  it  has 
not  been  complied  with.  Leighton  v. 
Stevens,  19  Maine,  154. — It  has  been 
decided  that  such  conditional  sales  are 
not  in  effect  chattel  mortgages  and 
therefore  void,  because  not  recorded. 
Buson  V.  Dougherty,  11  Humph.  50. 
And  where  upon  a  sale  and  delivery  it 
was  agreed  that  the  vendor  should  re- 
tain a  lien  upon  the  property  until  the 
price  was  paid,  it  was  held  that  this 
agreement  of  the  parties  created  a  valid 
lien  in  the  vendor  against  the  vendee, 
and  purchasers  from  him,  and  that  such 
lien  was  not  within  the  purview  of  the 
statute  requiring  mortgages  of  chattels 
to  be  recorded.  Sawyer  v.  Fisher,  32 
Maine,  28. 


CH.  IV.] 


SALE  OF  PERSONAL  PROPERTY. 


^450 


the  words  are  "  to  be  delivered  on  or  before  "  a  certain  day, 
this  is  a  condition  precedent,  and  if  they  are  not  delivered  on 
or  before  that  day,  (r)  the  purchaser  is  not  bound  to  take  the 
goods.  So  if  the  goods  are  to  be  delivered  "  on  request,"  the 
buyer  nriust  allege  and  prove  a  request,  this  being  a  condition 
precedent  to  his  acquiring  a  complete  right,  (s)  But  if  the 
seller  has  incapacitated  himself  *from  delivering  by  reselling, 
or  otherwise,  no  request  is  necessary,  (t) 

There  is  another  class  of  sales  on  condition,  often  called 
"contracts  of  sale  or  return."  In  these  the  property  in  the 
goods  passes  to  the  purchaser,  subject  to  an  option  in  him  to 
return  them  within  a  fixed  time,  or  a  reasonable  time  ;  and 
if  he  fails  to  exercise  this  option  by  so  returning  them,  the 
sale  becomes  absolute,  and  the  price  of  the  goods  may  be 
recovered  in  an  action  for  goods  sold  and  delivered  (w) 

In  sales  at  auction  there  are  generally  conditions  of  sale  ; 
and  where  these  are  distinctly  made  known  to  the  buyer, 
they  are  of  course  binding  on  him,  and  the  auctioneer  or 
the  owner  of  the  goods  is  bound  on  his  part.     The  question 


(»•)  Startup  V.  McDonald,  2  M.  &  Gr. 
395.  And  tlie  delivery  must  have  been 
made  at  a  reasonable  time  on  that  day, 
or  the  vendee  is  not  bound.     lb. 

(s)  Bach  V.  Owen,  5  T.  R.  409,  as 
explained  in  Radford  v.  Smith,  3  M.  & 
W.  2.t8,  where  Lord  Abinger  said:  — 
"  In  Bach  v.  Owen,  the  plaintiff  was 
not  entitled  to  the  horse  until  he  oftercd 
his  own  and  demanded  tlic  other. 
Where  i\v  the  express  terms  of  the  con- 
tract a  request  must  precede  delivery, 
or  where  that  is  to  be  implied  from  the 
nature  of  the  contract,  a  request  must 
be  alleged  and  proved,  but  not  other- 
wise." 

[t)  Ranay  v.  Alexander,  Yclverton, 
76,  and  Metcalf's  note  ;  Amory  v. 
Brodrick,  5  B.  &  Aid.  712;  Newcomb 
i,'.  Brackett,  IG  Mass.  161;  Webster  vr. 
Coffm,  14  Mass.  196.  Sec  also  ante, 
note  [d,)  p.  44.5. 

(«)  Moss  V.  Sweet,  3  E.  L.  &  E.  Rep. 
311;  (overruling  Ilev  v.  Frankenstein,  8 
Sc.  N.  R.  839.  and  "Lyons  v.  Barnes,  2 
Stark.  39);  Beverley  v.  The  Lincoln 
Gas  Light  find  Coke  Co.  6  Ad.  &  El. 
829  ;  Baylcy  v.  Gouldsmith,  Peake,  56  : 
Dearborn  v.  Turner,  16  Maine,  17.  See 
Mcldrum  v.  Snow,  9  Pick.  441  ;  Blood 


V.  Palmer,  2  Fairf  414;  Eldridge  v. 
Benson,  7  Cush.  485;  Neatc  v.  Ball,  2 
East,  116.  And  what  is  a  reasonable 
time  within  which  a  contract  is  to  be 
performed,  or  an  act  to  be  done,  is,  in 
the  absence  of  any  contract  bct^veen  the 
parties,  a  question  of  law  for  the  court, 
to  be  determined  by  a  view  of  all  the 
circumstances  of  the  particular  case. 
See  Attwood  v.  Clark.  2  Greenl.  249; 
Hill  V.  liobart.  16  Maine,  164;  Murry 
V.  Smith,  1  Hawks,  41.  But  see  Cocker 
V.  Franklin  Hemp  and  Flax  Man.  Co. 
3  Sumner,  530;  Ellis  v.  Thompson,  3 
M.  &  W.  445.  — Parol  evidence  of  the 
conversations  of  the  parties  is  admissible 
to  show  the  circumstances  under  which 
the  contract  was  made,  and  what  the 
parties  thought  a  reasonable  time.  Cock- 
er V.  Franklin  Hemp  and  I'lax  Man. 
Co.  supra.  And  where  A.  delivers  pro- 
perty to  B.,  on  condition  that  if  dam- 
aged, while  in  B.'s  possession,  B.  shall 
keep  it  and  pay  for  it,  this  is  a  condi- 
tional sale ;  and  if  the  property  is  so 
damaged  the  sale  becomes  ai)solute,  and 
assumpsit  for  goods  sold  and  delivered 
will  lie.  Bianchi  v.  Nash,  1  M.  &  W. 
545.  See  also  Perkins  v.  Douglass,  20 
Maine,  317. 

[465] 


451*  THE   LAW    OF   CONTRACTS.  [bOOK   III. 

whether  they  were  sufficiently  made  known  to  the  buyer 
would  be  one  rather  of  fact  than  of  law;  as  where  a  horse  is 
sold  by  warranty,  and  it  is  the  uniform  custom  of  the  auc- 
tioneer to  limit  all  objections  to  the  space  of  twenty-four 
hours  from  the  sale.  If  these  terms  are  a  part  of  all  the 
advertisements  of  the  auctioneer,  and  were  announced  by 
him  at  the  beginning  of  the  sale,  and  the  purchaser  had  come 
in  after  such  announcement,  and  no  direct  proof  of  his  know- 
ledge of  this  limitation  was  offered,  evidence  would  probably 
be  admitted  that  he  took  a  paper  containing  such  advertise- 
ment, and  of  any  other  facts  tending  to  show  such  kno\y- 
ledge*  and  the  jury  would  be  permitted  to  infer  the  know- 
ledge from  them  if  they  deemed  them  sufficient. 

If  it  be  provided  in  the  conditions  of  sale  that  no  error  or 
misstatement  shall  avoid  the  sale,  but  that  there  shall  be  a 
proportionate  allowance  on  the  purchase-money,  this  con- 
dition will  not,  in  general,  save  a  sale,  where  the  error  is 
of  a  material  and  substantial  nature,  although  not  fraudu- 
lent, (y)  The  test  of  this  question,  as  matter  of  law,  seems 
to  be,  whether  the  error  or  misstatement  is  so  far  material 
and  substantial  that  it  may  be  reasonably  supposed  the 
buyer  would  not  have  made  the  purchase  had  he  not  been 
so  misled.  And  such  misstatement  will  also  avoid  a  sale  if 
no  reasonably  accurate  estimate  can  be  made  of  the  com- 
pensation which  should  be  allowed  therefor,  {w)     Any  mis- 

(y)  The  Duke  of  Norfolk  v.  Worthy,         (iv)  See   Sherwood  v.  Robins,  1   M. 

1  Camp.  340;  Flight  v.  Booth,  1  Bing.  &  Mai.  194,  3  C.  &  P.  339,  where  it 
N.  C.  370  ;  Lyach  v.  MuUett,  3  C.  &  P.  was  determined  that  a  condition  in  arti- 
115.     See  also  Robinson  v.  Musgrove,  cles  of  sale,  "that   any    error  in   the 

2  M.  &  Rob.  92,  8  C.  &  P.  469,  where  it  particulars  shall  not  vitiate  the  sale, 
was /ifW that  a  condition  6f  sale,  "that  but  a  compensation  sliall  be  made," 
if  an}'  mistake  sliall  be  made  in  the  applies  only  to  cases  where  the  circum- 
description  of  the  premises,  or  any  stances  afford  a  principle  by  which  this 
other  error  whatever  shall  appear  in  the  compensation  can  be  estimated.  There- 
particulars  of  the  property,  such  mis-  fore  on  the  sale  of  a  reversion  expectant 
take  or  error  shall  not  annul  the  sale,  on  the  death  of  A.  B.  ivhhonl  children, 
but  a  compensation  shall  be  given,  &c."  an  error  in  the  statement  of  A.  B.'s 
does  not  apply  where  any  substantial  age  does  not  come  within  the  condi- 
part  of  the  property  turns  out  to  have  tion,  (as  it  would  if  the  reversion  were 
no  existence,  or  cannot  be  found;  or  simply  expectant  on  A.  B.'s  death,) 
where  the  vendor  has  inula  Jide  given  a  because  it  affects  the  probability  of  the 
very  exaggerated  description  of  the  pro-  other  contingency,  which  is  not  a  sub- 
perty.  'Jlie  purchaser  may  in  such  a  ject  of  calculation  ;  and  the  purchaser 
ease  rescind  the  contract  in  toto.     See  is  entitled  to  rescind  the  contract. 

also  ante,  p.  416,  n.  [v,)  et  seq. 

[466] 


CH.  IV.] 


SALE  OF  PERSONAL  PROPERTY. 


^452 


statement,  made  fraudulently,  and  capable  of  having  any 
effect  on  the  sale,  will  avoid  it.  Nor  will  the  conditions  of 
sale  be  binding  against  a  purchaser,  if  so  framed  as  to  give 
the  seller  advantages  which  the  buyer  could  not  readily 
apprehend  or  understand  without  legal  knowledge  or  advice ; 
for  a  buyer  is  discharged  from  a  purchase  made  under 
"  catching  conditions."  (x) 


*  SECTION  VII. 

MORTGAGES   OP   CHATTELS. 

Sales  of^  chattels,  by  way  of  mortgage,  constitute  a  very 
important,  and,  in  recent  times,  a  very  frequent  class  of  sales 
on  condition,  (xx)     There  has  not  been  as  yet  much  adjudi- 


(x)  Adams  v.  Lambert,  2  Jur.  1078; 
Dykes  v.  Blake,  4  Bing.  N.  C.  463.  In 
the  case  of  Dobell  v.  Hutchinson,  3  Ad. 
&  El.  35.'>,  on  a  sale  of  a  leasehold  in- 
terest of  lands,  described  in  the  parti- 
culars as  held  for  a  term  of  twenty- 
three  years,  at  a  rent  of  £55,  and  as 
comprising  a  yard,  one  of  the  condi- 
tions was,  that  if  any  mistake  should 
be  made  in  the  description  of  the  pro- 
perty, or  any  other  error  whatever 
should  appear  in  the  particulars  of  tiie 
estate,  such  mistake  or  error  should  not 
annul  or  vitiate  the  sale,  but  a  compen- 
sation should  be  made,  to  be  settled  by 
arbitration  ;  and  the  yard  was  not  in 
fact  comprehended  in  the  property  held 
for  the  term  at  £55,  but  was  held  by 
the  vendor  from  year  to  year,  at  an 
additional  rent;  and  such  yard  was 
essential  to  tlie  enjoyment  of  the  pro- 
perty leased  for  the  twenty-three  years. 
It  was  held,  tliough  it  did  not  appear 
that  the  vendor  knew  of  the  defect,  that 
this  defect  avoided  the  sale,  and  was 
not  a  mistake  to  be  compensated  for 
under  the  above  condition,  although 
after  the  day  named  in  the  conditions 
for  completing  the  purchase,  and  before 
action  brought  by  the  vendee,  the 
vendor  procured  a  lease  of  the  yard  for 
the  term  to  the  vendee,  and  offered  it 
to  him.  —  But  where  the  particulars  of 
sale  described  the  property  as  a  family 
residence,  with  the  right  of  a  pew  in  the 


centre  aisle  of  the  parish  church,  and 
the  title  of  the  pew  was  defective,  as 
the  use  of  the  pew  was  not  essential  to 
the  enjoyment  of  the  property,  this 
error  gave    a    right    to    compensation 

only.      Cooper    v. ,   2    Jur.    29. 

And  where  there  was  a  written  agree- 
ment to  sell  and  assign  "  the  unex- 
pired term  of  eight  years'  lease  and 
good  will"  of  a  public  house;  it  was 
lidd  that  the  purchaser  could  not  refuse 
to  perform  the  agreement  on  the  ground 
that  when  it  was  entered  into  there  was 
only  seven  yeai's  and  seven  months  of 
the  term  unexpired.  Lord  EUenhorough 
said: — "The  parties  cannot  be  sup- 
posed to  have  meant  that  there  was  the 
exact  term  of  eight  years  unexpired, 
neither  more  nor  less  by  a  single  day. 
The  agreement  must  therefore  receive 
a  reasonable  construction  ;  and  it  seems 
not  unreasonable  that  the  period  men- 
tioned in  the  agreement  should  be  cal- 
culated from  the  last  preceding  day 
when  the  rent  was  payable,  and  inclu- 
ding therefore  the  current  half  year. 
Any  fraud  or  material  misdescription, 
though  unintentional,  would  vacate  the 
agreement,  but  the  defendant  might 
have  had  substantially  what  he  agreed 
to  purchase."  Belworth  v.  Hassell,  4 
Camp.  140. 

{xx)  See  4  Kent's  Com.  138,  where 
the  distinction  between  a  pledge  and  a 
mortgage  of  personal  property  is  fully 

[467] 


453 


THE   LAW   OF    CONTRACTS. 


[book  III. 


cation  in  respect  to  them.  Whether  a  mortgage  of  person- 
ality has  at  common  law  any  equity  of  redemption  does  not 
seem  to  be  positively  determined;  but  it  is  believed  that 
equity  would  interfere  to  prevent  gross  injustice,  {y)  This 
subject*  is  regulated  in  many  of  the  States  by  statute,  and,  in 
general,  record  is  required  if  possession  of  the  goods  be  re- 
tained by  the  mortgagor  ;  and  an  equity  of  redemption  is  al- 
lowed, [z)  It  seems  that  a  mortgage  of  -personal  property, 
where  the  mortgagor  retains  possession,  is  not  valid  against 
a  subsequent  bond  fide  purchaser  or  attaching  creditor,  if 
there  be  neither  record  of  the  mortgage,  nor  actual  know- 
ledge of  it  on  the  part  of  the  purchaser  or  creditor,  {a) 

It  has  been  frequently  attempted  to  make  a  mortgage  of 


set  forth.     A  mortgage  of  goods   is  a 
conveyance  of  title  upon  condition,  and 
if  the  condition  is  not  performed  such 
title  becomes  absolute  in  laio,  but  e.quily 
will,  it  secins,  interfere  to  compel  a  re-- 
demption.     Story    on    Bailm.    §    287 ; 
Flanders  v.  Barstow,  18  Maine,  357  ;  2 
Story,  Eq.  Jur.  §  1031.    As  to  what  in- 
struments will  be  construed  as  a  mort- 
gage, and  what  as  merely  a  pledge,  see 
Langdon   v.  Buel,  9  Wend.  80;  Wood 
V.   Dudley,    8    Verm.   435 ;  Barrow   v. 
Paxton,  5  Johns.  258;  Coty  v.  Barnes, 
20  Verm.  78  ;  Whitaker  v.  'Sumner,  20 
Pick.  399,  and  post,  Bailments,  under 
the   head   of  Pledge.     A   mortgage  of 
pei'sonal  property,  like  that  of  real  es- 
tate, may  consist  of  an  absolute  bill  of 
sale,  and  a  separate  instrument  of  de- 
feasance, given  at  the  same  time.  Brown 
V.  Bement,  8  Johns.   96:    Ilojikins  v. 
Thompson,  2  Porter,  433;  Winslow  y. 
Tarbox,    18    Mahie,    132;  Williams  v. 
Eoser,  7  Missouri,  556  ;  Barnes  v.  Hol- 
comb,  12  S.  &  M.  300.     And  although 
the  bill  of  sale  is  aljsolute,  and  no  writ- 
ing oi  (^cia^sAHcQ   is    given    back,  parol 
testimony  is  still  admissible  to  prove 
that  it  was  intended  only  as  collateral 
security.     Reed  v.  Jewett.  5  Greenl.  96  ; 
Carter  v.  Burris,  10  S.  &  M.  527  :  Free- 
man V.  Baldwin,  13  Ala.  246.     But  see 
Whitaker   v.   Sumner,   20    Pick.   399 ; 
Montanyv.  Pock,  10  Missouri,  506.     It 
is  well  settled   that  mortgages  of  per- 
sonal property  need  not  be  under  seal. 
Despatch  Line  v.  Bellamy  Co.  12  New 
Hamp.  205;  Milton  v.  Mosher,  7  Mete. 
244  ;  Flory  v.  Denny,  II  E.  L.  &  E.  584. 
(y)  In  ilinman  v.  Judson,  13  Barb. 

[4(i8] 


629,  which  was  an  action  brought  by  the 
mortgagee  of  personal  property,  against 
a  party  claiming  under  the  mortgagor, 
for  conversion  of  the  property,  it  was  held 
that  a  mortgagor  of  chattels  may  redeem 
them  after  condition  broken,  and  before 
they  are  sold  on  the  part  of  the  mort- 
gagee, and  that  in  the  present  action  the 
defendant  might  exercise  this  right  by 
reducing  the  damages  to  be  recovered,  to 
the  amount  actually  due  upon  the  mort- 
gage debt. 

(z)  Thus,  in  Massachusetts,  an  equi- 
ty of  redemption  of  sixty  days  is  al- 
lowed the  mortgagor  after  condition 
broken,  or  after  notice  of  an  intention 
to  foreclose  given  by  the  mortgagee  for 
such  breach.  Mass.  Rev.  Stat.  c.  107, 
^  40;  Stat,  of  1843,  c.  72.  Nearly 
similar  provisions  exist  in  Maine. 
Maine  Rev.  Stat.  c.  125,  §  30. 

(a)  As  between  mortgagor  and  mort- 
gagee, a  mortgage  of  personal  property 
is  valid,  although  there  be  no  delivery 
of  the  property,  and  no  possession  by 
the  mortgagee,  or  record  of  the  mort- 
gage on  the  registry.  Sniitli  v.  Moore, 
11  New  Hamp.  55 ;  Winsor  v.  MeLel- 
lan,  2  Story,  492;  Hall  r.  Snowhill,  2 
Green,  8.  But  as  to  subsequent  pur- 
chasers, and  attaching  creditors  of  the 
mortgagor,  without  notice  of  the  exist- 
ence of  the  mortgage,  by  statute  in 
several  States,  the  mortgagee  must 
either  have  and  retain  possession  of  the 
mortgaged  property,  or  the  mortgage 
must  be  recorded  in  the  town  where  the 
mortgagor  resided  at  the  time  of  its 
execution.  Smith  v.  Moore,  supra. — 
And  where  such  provision   is  made  by 


CH.  IV.] 


SALE  OF  PERSONAL  PROPERTY. 


^454 


personalty  extend  over  chattels  not  then  owned  by  the  mort- 
gagor, but  to  be  subsequently  purchased.  As  where  a  shop- 
keeper makes  a  mortgage  of  "  all  the  goods  in  his  store,  and 
of  all  which  shall  be  bought  to  replace  or  renew  the  present 
stock."  Such  a  mortgage  might  operate  against  the  mort- 
*gagor  somewhat  by  way  of  estoppel;  but  it  has  been  de- 
cided that  it  is  not  valid  against  a  third  party,  (b)  And, 
where  the  mortgagee  permitted  the  mortgagor  to  remain  in 
possession,  for  the  purpose  and  with  the  power  of  selling  the 
goods,  such  mortgage,  although  recorded,  would  not  avoid 
the  sale,  even  if  it  did  not  express  in  any  way  such  purpose 
and  power,  if  they  could  be  inferred  from  the  circumstances. 


statute,  the  recording  is  equivalent  to 
actual  delivery.  Forbes  v.  Parker,  16 
Pick.  462.  But  in  New  York  it  has  been 
decided  that  the  record  of  a  mortgage 
does  not  rebut  the  presumption  of  fraud 
occasioned  by  the  mortgagor's  retention 
of  the  property,  such  record  being 
merely  an  additional  requirement.  Olis 
V.  Sill,  8  Barb.  102.  The  necessity  of 
delivery  to  the  mortgagee  or  of  a  re- 
cord, is  wholly  the  effect  of  statutory 
provisions,  and  at  common  law  a  mort- 
gage of  personal  property  might  be  valid, 
in  the  absence  of  fraud,  even  against 
subsequent  bond  Jide  purchasers  and  at- 
taching creditors,  although  the  mortga- 
gor remained  in  possession,  and  al- 
though no  record  of  the  mortgage  ex- 
isted. Holbrook  v.  Baker,  5  Greenl. 
309;  Bissell  v.  Hopkins,  3  Cow.  166; 
Bucklin  v.  Thompson,  1  J.  J.  Marsh. 
223;  Letcher  v.  Norton,  4  Scam.  575; 
Ash  V.  Savage,  5  New  Hamp.  545 ; 
Homes  v.  Crane,  2  Pick.  610.  Such 
continued  possession  by  the  mortgagor 
might  be  sufficient  evidence  of  fraud, 
but  it  would  not  alone  be,  in  most 
States,  conclusive.  lb.  In  Vermont  it 
would  be.  Russell  v.  Fillmore,  15 
Verm.  130.  Although  the  mortgagor 
remain  in  possession,  and  without  any 
record  of  the  mortgage,  it  seems  that  a 
subsequent  purchaser,  or  attaching  cre- 
ditor, having  actual  notice  of  the  existence 
of  the  mortgages,  acquires  no  rights 
against  the  mortgagee,  the  latter  being 
guilty  of  no  fraud.    Sanger  v.  Eastwood, 

19  Wend.  514;  Stowe  v.  Meserve,  13 
New  Hamp.  46;  Gregory  v.  Thomas, 

20  Wend.  17.  The  contrary  has  been 
held  in  Massachusetts.     Travis  v.  Bi- 


shop, 13  Met.  304. 
Lincoln,  Id.  200. 


And  see  Denny  v. 


VOL.  I. 


40 


(b)  Jones  v.  Richardson,  10  Met. 
481.  In  this  case  the  property  mort- 
gaged was  thus  described,  viz  :  —  "  The 
whole  stock  in  trade  of  said  A.,  as  well 
as  each  and  every  article  of  merchan- 
dise which  the  said  A.  (the  mortgagor) 
bought  of  one  T.  W.,  as  every  other 
article  constituting  said  A.'s  stock  in 
trade,  in  the  shape  the  same  is  and  may 
become,  in  the  usual  course  of  the  said  A.'s 
business  as  a  trader."  It  was  admitted 
that  the  goods  in  question,  which  had 
been  attached  by  a  creditor  of  the  mort- 
gagor, were  at  the  time  of  the  attachment 
the  stock  in  trade  of  the  said  A.,  but 
that  only  a  part  of  them  was  owned  by 
him,  until  after  he  made  said  mort- 
gage. The  court,  after  a  critical  re- 
view of  the  authorities  bearing  upon 
this  point,  held  that  the  mortgagee 
could  not,  as  against  third  persons, 
acquire  under  this  mortgage  any  valid 
title  to  those  goods  purchased  by  the 
mortgagor  after  the  giving  of  the  mort- 
gage. The  same  view  is  supported  by 
the  late  case  of  Lunn  v.  Thornton,  1  C. 
B.  379;  Rhines  v.  Phelps,  3  Oilman, 
455 ;  Barnard  v.  Eaton,  2  Cush.  294 ; 
Pettis  V.  Kellogg,  7  Cush.  471 ;  Winslow 
V.  Merchants'  Ins.  Co.  4  Met.  306; 
Otis  V.  Sill,  8  Barb.  102.  The  case  of 
Abbott  V.  Goodwin,  20  Maine,  408, 
which  may  seem  to  conflict  with  the 
rule  laid  down  in  the  text,  does  not 
seem  to  us  correct,  and  is  apparently 
inconsistent  with  the  views  of  the  same 
court  as  expressed  in  the  later  case  of 
Goodenow  v.  Dunn,  21  Maine,  96. 

[469] 


455* 


THE  LAW   OF   CONTRACTS. 


[book  III. 


Supposing  the  whole  transaction  to  be  bo?id  fide,  the  mort- 
gagor would  be  considered  as  selling  the  goods  as  the  agent 
of  the  mortgagee,  and  the  proceeds  would  belong  to  him  ; 
and,  if  sold  on  credit,  the  debt  could  not  be  reached  by  an 
attaching  creditor  through  the  trustee  process,  (c) 


(c)  Unless  there  is  some  stipulation 
in  the  mortgage,  allowing  the  mortga- 
gor to  remain  in  possession  of  the 
goods,  the  right  of  immediate  posses- 
sion vests,  together  with  the  property, 
in  them,  in  the  mortgagee;  and  he  may 
have  an  action  against  any  one  taking 
them  from  the  mortgagor.  Pickard  v. 
Low,  15  Maine,  48;  Brackett  v.  Bul- 
lard,  12  Met.  308;  Coty  v.  Barnes,  20 
Verm.  78.  And  parol  proof  is  not  ad- 
missible to  show  an  agreement  that  the 
mortgagor  should  remain  in  posses- 
sion ;  the  mortgage  itself  being  silent 
upon  the  subject.  Case  v.  Winship,  4 
Blackf.  425.  And  although  the  mort- 
gage contains  an  express  stipulation 
that  the  mortgagor  shall  remain  in  pos- 
session, until  default  of  payment,  and 
with  a  power  to  sell  for  the  payment  of 
the  mortgage  debt,  the  mortgagee  may 
nevertheless  sustain  troA'er  against  an 
officer  attaching  the  goods  as  the  pro- 
perty of  the  mortgagor.  Melody  v. 
Chandler,  3  Fairf.  282  ;  Forbes  v.  Par- 
ker, 16  Pick.  462;  Welch  v.  "Whitte- 
more,  25  Maine,  86  ;  Ferguson  v.  Tho- 
mas, 26  Maine,  499.  In  the  late  case 
of  Barnard  v.  Eaton,  2  Cush.  294, 
where  a  mortgage  was  made  of  all  the 
goods  then  in  the  mortgagor's  store, 
and  of  all  goods,  &c.,  which  might  be 
afterwards  suhstituted  by  the  mortga- 
gor for  those  which  he  then  possessed, — 
the  mortgage  providing  that  until  de- 
fault the  mortgagor  might  use  and 
make  sales  of  the  mortgaged  property, 
[470] 


other  goods,  &c.,  of  equal  value  being 
substituted  therefor, — it  was  held,  that 
the  mortgage  could  not  apply  to  goods 
not  in  existence,  or  not  capable  of  being 
identified,  at  the  time  it  was  made,  or 
to  goods  intended  to  be  afterwards  pur- 
*  chased  to  replace  those  which  should  be 
sold.  It  was  also  held  in  the  same  case 
that  an  agreement,  in  a  mortgage  of  the 
stock  of  goods  then  in  the  mortgagor's 
store,  that,  until  default,  the  mortgagor 
might  retain  possession  of  the  property, 
and  makes  sales  thereof  in  the  usual 
course  of  his  trade,  other  goods  of  equal 
value  being  substituted  by  him  for  those 
sold,  will  not  authorize  the  mortgagor 
to  put  the  mortgaged  property  into  a 
partnership,  as  his  share  of  the  capital. 
In  New  York,  unless  the  mortgage  is 
filed  in  pursuance  of  the  statute,  the 
mortgagor  cannot  remain  in  possession 
for  the  purpose  of  selling  the  goods. 
Camp  V.  Camp,  2  Hill,  628.  See  also 
Collins  V.  Myers,  16  Ohio,  547.  And 
in  Edgell  v.  Hart,  13  Barb.  380,  where 
a  mortgage,  although  recorded,  was 
intended  to  cover  property  aftei'wards 
to  be  procured  by  the  mortgagor,  and 
in  it  the  mortgagee  gave  him  the 
right  to  sell  the  goods  for  ready  pay, 
without  being  under  any  obligation  to 
apply  the  proceeds  to  the  discharge  of 
the  mortgage,  or  any  other  debt,  it  was 
field  that  the  mortgage  was  void  as  cal- 
culated to  delay,  hinder,  and  defraud 
other  creditors  of  the  mortgagor. 


CH.  v.]  WARRANTY.  456 


CHAPTER  V. 


WARRANTY. 


The  warranties  which  accompany  a  sale  of  chattels  are  of 
two  kinds  in  respect  to  their  subject-matter ;  they  are  a  war- 
ranty of  title  and  a  warranty  of  quality.  They  are  also  of 
two  kinds  in  respect  to  their  form,  as  they  may  be  express  or 
implied. 

Blackstone  says,  "  a  purchaser  of  goods  and  chattels  may 
have  a-  satisfaction  from  the  seller,  if  he  sells  them  as  his 
own,  and  the  title  proves  deficient,  without  any  express  war- 
ranty for  that  purpose."  (d)  But  he  also  says  afterwards, 
"  in  contracts  for  sales,  it  is  constantly  understood,  that  the 
seller  undertakes  that  the  commodity  he  sells  is  his  own,  and 
if  it  proves  otherwise,  an  action  on  the  case  lies  against  him 
to  exact  damages  for  the  deceit."  (e)  From  this  it  might  be 
inferred  that  the  action  is  grounded  on  the  deceit,  and  there- 
fore does  not  lie  where  there  is  no  deceit,  as  where  one  sells 
as  his  own  that  which  is  not  his  own,  but  which  he  verily 
believes  to  be  his  own.  But  although  the  English  authori- 
ties are  somewhat  uncertain  and  conflicting,  we  consider 
that  a  rule  is  recognized  in  the  English  courts,  or  in  some  of 
them,  which,  although  not  distinctly  and  positively  asserted, 
nor  so  well  supported  by  direct  decision  as  the  American  rule, 
may  yet  be  regarded  as  essentially  the  same.  (/)    And  in  this' 


(d)  2  Bl.  Com.  451.  having  hired  a  harp,  pledged  it  with  a 

(e)  3  Bl.  Com.  166,  Wendell's  ed.  and  pawnbroker  for  his  own  debt,  without 
note.  authority  from  the  true  owner.     The 

(/)  Medina  v.  Stoughton,    1    Salk.  harp  not  being  redeemed  at  the  stipu- 

210;  Crosse  u.  Gardner,  Carth.  90.  This  latcd  time,  the  pawnbroker  sold  it  at 

subject  was  much  discussed  in  England,  auction   at   his    usual   quarterly  sales. 

in  the  late  case  of  Morley  v.   Atten-  The  harp  was   advertised  as   forfeited 

borough,  3  Exch.  500.    There  a  person  property,  pledged  with  the  broker.   Tho 

[471] 


457 


THE   LAW  OF   CONTRACTS. 


[book  in. 


country  it  seems  to  be  now  well  settled,  by  adjudications  in 
many  of  our  States,  that  the  seller  of  a  chattel,  (g)  (if  in  pos- 
session,) warrants  by  implication  that   it  is  his  own,  and  is 


purchaser  at  the  auction  bought,  not 
knowing  that  the  harp  did  not  belong 
to  the  party  pledging  it ;  but  after  the 
sale,  being  sued  by  the  former  owner, 
he  gave  up  the  harp,  and  paid  the  costs. 
He  then  commenced  an  action  against 
the  pawnbroker  for  the  price  at  which 
he  bid  off  the  harp,  on  a  warranty  of 
title.  It  was  agreed  that  there  was  no 
express  warranty ;  and  the  court  held  that 
under  these  circumstances  there  was  no 
implied  warranty  of  an  absolute  and 
perfect  title,  on  the  part  of  the  pawn- 
broker, but  only  that  the  subject  of  the 
sale  was  a  pledge,  and  irredeemable,  and 
that  the  pawnbroker  was  not  cognizant 
of  any  defect  of  title  to  it.  This  case 
has  sometimes  been  cited  as  deciding  the 
general  principle  that  in  all  cases  of  sales 
of  personal  property  there  is  no  implied 
warranty  of  title,  and  it  has  been  thought 
to  be  opposed  to  the  American  doctrine 
on  this  subject;  and  some  of  the  lan- 
guage of  Parke,  B.,  who  delivered  the 
judgment,  may  go  somewhat  to  sustain 
such  a  view.  But  we  conceive  that  the 
case,  as  an  authority,  cannot  be  pressed 
farther  than  the  actual  fiicts  and  circum- 
stances warrant;  and  in  this  light  the 
decision  itself  seems  not  in  conflict,  but 
in  harmony  with  the  American  cases. 
For  a  sale  by  a  pawnbroker,  under  the 
circumstances  detailed  in  that  case,  may 
be  analogous  to  that  of  a  sale  of  a  chat- 
tel by  a  sheriff  on  execution.  And  here 
all  authorities,  English  and  American, 
agree  that  the  sheriff  does  not  impliedly 
warrant  the  title  of  the  execution  debtor 
to  the  property  seized  on  execution ;  but 
only  that  he  does  not  know  that  he  had 
not  title  to  the  goods.  Peto  v.  Blades, 
5  Taunt.  657  ;  Hensley  v.  Baker,  10 
Missouri,  157;  Chapman  v.  Speller,  19 
.Law  J.  Rep.  (N.  S.)  Q.  B.  239  ;  Yates 
V.  Bond,  2  McCord,  382;  Bashore  v. 
Whisler,  3  Watts,  490  ;  Stone  v.  Point- 
er, 5  Munf.  287  ;  Morgan  v.  Fencher,  1 
Blackf.  1 0 ;  Davis  v.  Hunt,  2  Bailey,  412; 
Friedly  v.  Scheeiz,  9  S.  &  R.  156; 
Rodgers  v.  Smith,  2  Carter,  (Ind.)  526. 
So  a  sale  by  an  executor,  administrator, 
or  other  trustee,  does  not  raise  an  im- 
plied warranty  of  title ;  such  person  does 
not  sell  the  property  as  his  own ;  he 
does  not  offer  it  as  his  own ;  and  unless 

[472] 


guilty  of  fraud,  he  would  not  be  respon- 
sible, if  the  title  failed.  Ricks  v.  Dilla- 
hunty,  8  Porter,  134  ;  Forsythe  v.  Ellis, 
4  J.  J.  Marsh.  298.  On  consideration 
of  all  the  cases  on  this  subject,  we  must 
believe  the  language  of  Blackstone  to  be 
correct,  that  if  a  person  in  possession  of 
a  chattel  sells  it,  as  his  own,  there  is  an 
implied  warranty  of  title.  That  the  case 
of  Morley  v.  Attenborough  should  not 
be  considered  as  an  authority,  further 
than  the  actual  facts  of  the  case  warrant, 
see  the  late  case  of  Simms  v.  Marryatt, 
7  E.  L.  &  E.  R.  330,  where,  however, 
there  was  an  express  warranty.  Lord 
Campbell  said:  —  "Jft  does  not  seem  ne- 
cessary to  inquire  what  is  the  law  as  to 
implied  warranty  of  title  on  the  sales  of 
personal  property,  which  is  not  quite  satis- 
factorily settled.  According  to  Morley 
V.  Attenborough,  if  a  pawnbroker  sells 
unredeemed  pledges  he  does  not  war- 
rant the  title  of  the  pawner,  but  merely 
undertakes  that  the  time  for  redeeming 
the  pledges  has  expired,  and  he  sells 
only  such  right  as  belonged  to  the 
pawner.  Beyond  that  the  decision 
does  not  go,  but  a  great  many  questions 
are  suggested  in  the  judgment  which 
still  remain  open.  Although  the  maxim 
of  caveat  emptor  applies  generally  to  the 
purchaser  of  personal  property,  there 
may  be  cases  where  it  would  be  difficult 
to  apply  the  rule."  It  seems  always  to 
have  been  held  that  if  a  vendor  sells, 
knowing  he  has  no  title,  and  conceals 
that  fact,  he  is  liable  as  for  a  fraud. 
Early  v.  Garret,  9  B.  &  C.  932  ;  Sprig- 
well  V.  Allen,  Aleyn,  91.  And  in  Ro- 
binson V.  Anderton,  Peake,  94,  a  pur- 
chaser of  fixtures,  the  title  of  which  was 
not  in  the  vendor,  was  allowed  to  re- 
cover their  price  as  money  had  and  re- 
ceived, although  the  venlor  was  not 
guilty  of  fraud,  and  bond  fide  believed 
himself  the  owner. 

(g)  This  must  be  confined  to  sales  of 
chattels.  In  the  sale  of  real  estate  by 
deed  there  are  no  implied  warranties. 
The  words  "containing  so  many  acres," 
&c.,  do  not  import  a  covenant  of  quan- 
tity. Huntly  V.  Waddell,  12  Ired.  32; 
Rickets  v.  Dickens,  1  Murph.  343 ; 
Powell  V.  Lyles,  1  Id.  348;  Roswel  v. 
Vaughan,  Cro.  Jac.  196. 


CH.  v.] 


WARRANTY. 


458 


answerable  to  the  purchaser  if  it  be  taken  from  him  by  one 
who  has  a  better  title  than  the  seller,  whether  the  seller  knew 
the  defect  of  his  title  or  not,  and  whether  he  did  or  did  not 
make  a  distinct  affirmation  of  his  title.  But  if  the  seller  is 
out  of  possession,  and  no  affirmation  of  title  is  made,  then  it 
may  be  said  that  the  purchaser  buys  at  his  peril.  And  this 
we  think  the  established  rule  of  law  in  this  country,  (h) 


{h)  No  case  more  directly  asserts  the 
implied  warranty  of  title,  in  all  cases  of 
sales  of  personal  property,  than  that  of 
Defreeze  v.  Trumper,  1  Johns.  274, 
(1806.)  There  the  purchaser  of  a  horse 
brought  a  suit  against  the  vendor  to  re- 
cover damages :  the  title  having  been 
in  a  third  person,  and  not  in  the  vendor, 
at  the  time  of  the  sale.  The  principal 
objection  at  the  trial  was,  that  the  evi- 
dence did  not  prove  any  warranty,  nor 
any  fraud  in  the  sale.  But  the  court 
said :  —  "  We  are  of  opinion  that  an  ex- 
press warranty  was  not  requisite,  for  it 
is  a  general  rule  that  the  law  will  imply 
a  warranty  of  title  upon  the  sale  of  a 
chattel."  And  this  doctrine  has  been 
steadily  adhered  to  and  uniformly  fol- 
lowed by  the  courts  of  New  York.  Sec 
Heermance  v.  Vernoy,  6  Johns.  5, 
(1810)  ;  Vibbard  v.  Johnson,  19  Johns. 
77,  (1821)  ;  Swett  v.  Colgate,  20  Johns. 
196,  (1822) ;  Reid  v.  Barber,  3  Cowen, 
272,  (1824)  ;  McCoy  v.  Artcher,  3 
Barb.  323,  (1848.)  In  this  case  a  very 
able  judgment  was  pronounced,  in  favqr 
of  the  doctrine  of  the  text,  namely,  that 
in  sales  of  personal  property,  in  the  pos- 
session of  the  vendor,  there  is  an  implied 
warranty  of  title,  for  the  possession  is 
equivalent  to  an  affirmation  of  title.  But 
it  is  held  otherwise  where  the  property 
sold  is  then  in  the  possession  of  a  third 
person,  and  the  vendor  made  no  affirm- 
ation or  assertion  of  ownership.  And 
the  same  was  again  distinctly  affirmed 
in  the  still  later  case  of  Edick  v.  Crim, 
10  Barb.  445.  Dresser  v.  Ainsworth, 
9  Barb.  619,  is  a  valuable  case  upon 
this  point.  It  is  there  held  that  this  im- 
plied warranty  of  title  not  only  means 
that  the  vendor  has  a  right  to  sell,  but 
it  extends  to  a  prior  lien  or  incumbrance. 
The  essence  of  the  contract  is,  that  the 
vendor  has  a  perfect  title  to  the  goods 
sold ;  that  the  same  are  unincumbered, 
and  that  the  purchaser  will  acquire  by 
the  sale  a  title  free  and  clear,  and  shall 
enjoy  the  possession  without  disturbance 
40* 


by  means  of  any  thing  done  or  suffered 
by  the  vendor.  So  in  Coolidge  v.  Brig- 
ham,  I  Met.  551,  V/ilde,  J.,  says  :  —  "In 
contracts  of  sales  a  warranty  of  title  is 
implied.  The  vendor  is  always  under- 
stood to  affirm  that  the  property  he  sells 
is  his  own.  And  this  impliecl  affirma- 
tion renders  him  responsible,  if  the  title 
proves  defective.  This  responsibility 
the  vendor  incurs,  although  the  sale  may 
be  made  in  good  faith,  and  in  ignorance 
of  the  defect  of  his  title.  This  ride  of 
law  is  well  established,  and  does  not 
trench  unreasonably  upon  the  rule  of 
the  common  law,  caveat  emptor."  The 
general  doctrine  of  the  text  is  also 
directly  asserted  or  recognized  in  Buck- 
nam  v.  Goddard,  21  Pick.  70 ;  Hale  v. 
Smith,  6  Greenl.  420  ;  Butler  v.  Tufts, 
13  Maine,  302;  Thompson  v.  Towle, 
32  Maine,  87  ;  Lines  v.  Smith,  4  Flo- 
rida, 47 ;  Lackey  v.  Stouder,  2  Carter, 
(Ind.)  376  ;  Gookin  v.  Graham,  5 
Humph.  480  ;  Trigg  v.  Paris,  5  Humph, 
343  ;  Dorsey  v.  Jackman,  1  S.  &  E.  42  ; 
Eldridge  v.  Wadleigh,  3  Fairf.  372  ; 
Cozzins  V.  Whitaker,  3  Stew.  &  Port. 
322;  Mockbee  v.  Gardner,  2  Harr.  & 
Gill,  176;  Payne  v.  Eodden,  4  Bibb, 
304  :  Inge  v.  Bond,  3  Hawks,  103, 
Taylor,  C.  J. ;  Chism  v.  Woods,  Hardin, 
531  ;  Scott  V.  Scott,  2  A.  K.  ISIarsh, 
217  ;  Chancellor  v.  Wiggins,  4  B.  Mon. 
201;  Boyd  v.  Bopst,  2  Dall.  91  ;  Col- 
cock  V.  "Good,  3  McCord,  513;  Ricks 
V.  Dillahunty,  8  Porter,  134.  See  also 
a  well  reasoned  article  in  12  Am.  Jur. 
311;  2  Kent's  Com.  478.  We  have 
been  thus  full  in  the  citation  of  authori- 
ties upon  this  apparently  well  settled 
point,  because  there  is  still  some  con- 
flict of  opinion  upon  it,  and  because  the 
American  doctrine  has  been  thought 
not  to  rest  upon  good  foundation.  The 
arguments  and  authorities  upon  tlie  op- 
posite side  of  the  question  are  very  ably 
stated  in  11  Law  Reporter,  (Boston.) 
272.  et  seq. 

[473] 


459 


THE   LAW   OF  CONTRACTS. 


[book  III. 


All  warranties,  however  expressed,  are  open  to  such  con- 
struction from  surrounding  circumstances,  and  the  general 
character  of  the  transaction,  and  the  established  usage  in 
similar  cases,  as  will  make  the  engagement  of  warranty  con- 
form to  the  intention  and  understanding  of  the  parties;  pro- 
vided, however,  that  the  words  of  warranty  are  neither 
extended  nor  contracted  in  their  significance  beyond  their 
fair  and  rational  meaning.  For  these  words  of  warranty  are 
usually  subjected  to  a  careful,  if  not  a  precise  and  stringent 
interpretation,  as  it  is  the  fault  of  the  buyer  who  asks  for  or 
receives  a  warranty,  if  it  does  not  cover  as  much  ground  and 
give  him  as  effectual  protection  as  he  intended,  (i) 

If  there  be  no  express  warranty,  the  common  law,  in  gene- 
ral, implies  none.     Its  rule  is,  unquestionably,  both  in  Eng- 


{i)  A  general  warranty  is  said  not  to 
cover  defects  plain  and  obvious  to  the 
purchaser,  or  of  which  he  had  cogni- 
zance ;  thus,  if  a  horse  be  warranted 
perfect,  and  want  a  tail  or  an  ear.  13 
H.  4,  1  b,  pi.  4:  11  Edw.  4,  6  b,  pi.  10; 
Southerne  v.  Howe,  2  Rol.  R.  5 ;  Long 
V.  Hicks,  2  Hump.  305  ;  Schuyler  v. 
Russ,  2  Caines,  202  ;  Margetson  v. 
Wright,  5  M.  &  P.  606 :  Dillard  v. 
Moore,  2  Eiig.  [Ark.]  166.  The  same 
rule  applies  whether  the  warranty  is  ex- 
press or  whether  a  warranty  is  implied 
by  law,  from  a  sound  price,  as  is  the  case 
in  some  States.  Richardson  v.  John- 
son, 1  Louis.  Ann.  Rep.  389.  But  care 
should  be  taken  not  to  misunderstand 
nor  misapply  this  rule.  A  vendor  may 
warrant  against  a  defect  which  is  pa- 
tent and  obvious,  as  well  as  against 
any  other.  And  a  general  warranty 
that  a  horse  was  sound,  for  instance, 
would  in  our  judgment  be  broken,  if 
one  eye  was  so  badly  injured,  or  so  mal- 
formed, as  to  be  entirely  useless,  and 
although  this  defect  might  have  been 
noticed  by  the  purchaser  at  the  time  of 
sale.  He  may  choose  to  rely  upon  the 
warranty  of  the  vendor,  rather  than 
upon  his  own  judgment,  and  we  see 
not  why  he  should  not  be  permitted  to 
do  so.  A  warranty  that  a  horse  is 
sound  is  broken  if  he  cannot  see  with 
one  eye.  House  v.  Fort,  4  Black.  293. 
Why  may  not  the  vendor  be  equally 
liable  if  one  eye  was  entirely  gonel 
In  Margetson  v.  Wright,  8  JBing.  454, 

[474] 


7  Bing.  603,  a  horse  warranted  sound 
had  a  splint  then  ;  this  was  visible  at  the 
time  of  sale ;  but  the  animal  was  not 
then  lame  from  it.  He  afterwards  be- 
came lame  from  the  efFeets  of  it ;  and 
the  warranty  was  held  to  be  broken. 
In  Liddard  v.  Kain,  2  Bing.  183,  an 
action  was  brought  to  recover  the  value 
of  horses  sold  and  delivered.  The  de- 
fence was,  that  at  the  time  of  the  pur- 
chase the  plaintiff  agreed  to  deliver  the 
horses  at  the  end  of  a  fortnight,  sound 
and  free  from  blemish,  and  that  at  the 
end  of  the  fortnight,  one  had  a  cough, 
afnd  the  other  a  swelled  leg  ;  but  it 
also  appeared  that  the  seller  informed 
the  buyer  that  one  of  the  horses  had  a 
cold  on  him,  and  that  this  as  well  as 
the  swelled  leg  was  apparent  to  every 
observer.  The  jury  having  found  a 
verdict  for  the  defendant,  a  rule  for  a 
new  trial  was  moved  for,  on  the  ground 
that  where  defects  are  patent  a  war- 
ranty against  them  is  inoperative.  The 
court  refused  the  rule,  on  the  ground  that 
the  warranty  did  not  apply  to  the  time  of 
the  sale,  but  to  a  subsequent  period. 
—  In  Stucky  v.  Clyburn,  Cheves,  186, 
a  slave  sold  had  a  hernia;  this  was 
known  to  the  buyer.  Yet  it  was  held 
to  be  within  an  express  warranty  of 
soundness.  So  of  a  swelling  in  the  ab- 
domen, plainly  visible  and  known  to 
the  purchaser.  Wilson  v.  Ferguson, 
Cheves,  190.  So  where  a  slave  had 
the  scrofula  at  the  time  of  sale.  Thomp- 
son V.  Botts,   8   Missouri,   710.    And 


CH.  v.]  WARBANTY.  460 

land  and  in  this  country,  caveat  emptor,  (j)  —  let  the  purchaser 
take  care  of  his  own  interests.  This  rule  is  apparently 
severe,  and  it  sometimes  works  wrong  and  hardship  ;  and  it 
is  not  surprising  that  it  has  been  commented  upon  in  terms 
of  strong  reproach,  not  only  by  the  community,  but  by  mem- 
bers of  the  legal  profession  ;  and  these  reproaches  have  in 
some  instances  been  echoed  from  tribunals  which  acknow- 
ledged the  binding  force  of  the  rule.  But  the  assailants  of 
this  rule  have  not  always  seen  clearly  how  much  of  the  mis- 
chief apparently  springing  from  it  arises  rather  from  the 
inherent  difficulty  of  the  case.  As  a  general  rule,  we  must 
have  this  or  its  opposite  ;  and  we  apprehend  that  the  opposite 
rule,  —  that  every  sale  implies  a  warranty  of  quality,  —  would 
cause  an  immense  amount  of  litigation  and  injustice.  It  is 
always  in  the  power  of  a  purchaser  to  demand  a  warranty  ; 
and  if  he  does  not  get  one,  he  knows  that  he  buys  without 
warranty,  and  should  conduct  himself  accordingly  ;  for  it 
is  always  his  duty  to  take  a  proper  care  of  his  own  inte- 
rests, and  to  use  all  that  precaution  or  investigation  which 
such  case  requires  ;  and  he  must  not  ask  of  the  law  to  in- 
demnify him  against  the  consequences  of  his  own  neglect  of 
duty. 

The  decisions  under  the  rule  of  caveat  emptor  have  fluc- 
tuated very  much,  and  there  is  a  noticeable  conflict  and 
uncertainty  in  respect  to  many  points  of  the  law  of  warranty 
upon  sales.  But  some  exceptions  and  qualifications  to  the 
general  rule  are  now  nearly,  if  not  quite,  established,  both 
in  England  and  in  this  country ;  and  the  rule  of  caveat 
emptor,  thus  modified,  may  perhaps  be  regarded  as  upon  the 
whole  well  adapted  to  protect  right,  to  prevent  wrong,  and 
to  provide  a  remedy  for  a  wrong  where  it  has  occurred. 

One  important  and  universal  exception  is  this;  the  rule 
never  applies  to  cases  of  fraud ;  never  proposes  to  protect  a 


where  a  defect  is  obvious,  yet  if  the  Wilkins,  Dougl.  20 ;  Johnston  v.  Cope, 

purchaser  be  misled  as  to  its  character  3  Har.  &  Johns.  89  ;  Seixas  v.  Woods, 

or  extent,  a  warranty  is  implied.    Wood  2  Caines,  48 ;  Holden  v.  Dakin,  4  Johns. 

r.  Ashe,  3  Strob.  L.  64.  421  ;    Dean   v.   Mason,  4    Conn.  428  ; 

(j)  Mixer  v.  Coburn,  11  Met.  .559:  West  v.  Cunningham,    9  Porter,   104; 

Winsor  v.  Lombard,  18  Pick.  59;  Park-  Mores  v.  Mead,  1  Denio,  378;  McKin- 

inson  v.  Lee,  2  East,  321  ;    Stuart  r.  ney  v.  Fort,  10  Tex.  220. 

[475] 


X 


461  THE  LAW   OF   CONTRACTS.  [BOOK  III. 

seller  against  his  own  fraud,  nor  to  disarm  a  purchaser  from 
a  defence  or  remedy  against  a  seller's  fraud,  (k)  It  becomes, 
therefore,  important  to  know  what  the  law  means  by  fraud 
in  this  respect,  and  what  it  recognizes  as  such  fraud  as  will 
prevent  the  application  of  the  general  rule.  If  the  seller 
knows  of  a  defect  in  his  goods,  which  the  buyer  does  not 
know,  and  if  he  had  known,  would  not  have  bought  the  goods, 
and  the  seller  is  silent,  and  only  silent,  his  silence  is  never- 
theless a  moral  fraud,  and  ought  perhaps  on  moral  grounds 
to  avoid  the  transaction.  But  this  moral  fraud  has  not  yet 
grown  into  a  leg-al  fraud.  In  cases  of  this  kind  there  may  be 
circumstances  which  cause  this  moral  fraud  to  be  a  legal 
fraud,  and  give  the  buyer  his  action  on  the  implied  warranty, 
or  on  the  deceit.  And  if  the  seller  be  not  silent,  but  produce 
the  sale  by  means  of  false  representations,  there  the  rule  of 
caveat  emptor  does  not  apply,  and  the  seller  is  answerable 
for  his  fraud.  But  the  weight  of  authority  requires  that  this 
should  be  active  fraud.  The  common  law  does  not  oblige  a 
seller  to  disclose  all  that  he  knows,  which  lessens  the  value 
of  the  property  he  would  sell.  He  may  be  silent,  leaving  the 
purchaser  to  inquire  and  examine  for  himself,  or  to  require  a 
warranty.  He  may  be  silent,  and  be  safe ;  but  if  he  be  more 
than  silent ;  if  by  acts,  and  certainly  if  by  words,  he  leads 
the  buyer  astray,  inducing  him  to  suppose  that  he  buys  with 
warranty,  or  otherwise  preventing  his  examination  or  inquiry, 
this  becomes  a  fraud  of  which  the  law  will  take  cognizance. 
The  distinction  seems  to  be  —  and  it  Is  grounded  upon  the 
apparent  necessity  of  leaving  men  to  take  some  care  of  them- 
selves in  their  business  transactions  —  the  seller  may  let  the 
buyer  cheat  himself  ad  libitum,  but  must  not  actively  assist 
him  in  cheating  hin^lf.  (/) 


(k)  Irving  f.  Thomas,  18  Maine,  418;  night  of  the  peace   of  1815,   between 

Otts  V.  Alderson,  10  S.  &  M.  476.  England  and  the  United  States,  -whieh 

{/)  The  case  of  Laidlaw  v.  Organ,  2  raised  the  value  of  the  article  from  thirty 

Wheat.  178,  is  the  leading  case  on  this  to  fifty  per  cent.     Organ  called  on  Gi- 

subject  in  America.     The  facts  were  rault    on    Sunday    morning,    a    little 

that  one  Shepherd,  interested  with  Or-  after  sunrise,  and  was  asked  if  there 

gan,  and  in  treaty  with  Girault,  a  mem-  was  any  news,  by  which  the  price  of  it 

ber  of  the  firm  of  Laidlaw  &  Co.,  at  might  be  enhanced ;  but  there  was  uo 

New  Orleans,  for  a  quantity  of  tobacco,  evidence  that  Organ  had  asserted  or 

had  secretly  received  intelligence  over  suggested  any  thing  to  induce  a  belief 


\ 


[476] 


CH.  v.]  WARRANTY.  462 

As  mere  silence  implies  no  warranty,  neither  do  remarks  ) 
which  should  be  construed  as  simple  praise  or  commenda-  ^ 
tion ;  (m)  but  any  distinct  assertion  or  affirmation  of  qua-  ' 


that  such  news  did  not  exist,  and  under 
the    circumstances    the     bargain    was 
struck.     Marshall,  C.  J.,  delivered  the 
opinion  of  the  court,  to  the  effect  that 
the  buyer  was  not  bound  to  communi- 
cate intelligence  of   extrinsic    circum- 
stances which  might  influence  the  price, 
though  it  were  exclusively  in  his  pos- 
session, and  that  it  would  be  difficult 
to    circumscribe   the  contrary  doctrine 
within  proper  limits,  where  the  means  of 
intelligence  are  equally  accessible  to  both 
parties.     Bench   v.   Sheldon,    14   Barb. 
66  ;    Kintzing    v.    McElrath,    5    Barr, 
467,  also  well   illustrate   the   principle 
of  the  text,  that  where  the  means  of 
knowledge   is   accessible   to   both    par- 
ties, each  must  judge  for  himself,  and 
it  is    neither   the   duty  of  the   vendor 
to  communicate  to  the  vendee  any  supe- 
rior knowledge  which  he  may  have  of 
the  value  of  the  commodity,  nor  of  the 
vendee  to  disclose  to  the  vendor  any 
facts  which  he  may  have,  rendering  the 
property  more  valuable  than  the  vendor 
supposed.     And  in  the  case  of  Irvine  v. 
Kirkpatrick,  3  E.  L.   &  E.  17,  it  was 
decided  by  the  House  of  Lords  that  a 
concealment  upon  a  sale  of  real  estate, 
to  avoid  the  sale,  must  be  of  something 
that   the   party  concealing  was  bound 
to   disclose.     See  also   Blydenburgh  v. 
Welsh,    1    Baldwin,  331  ;    Calhoun  v. 
Vechio,  3  Wash.  C.  C.  R.  165  ;  Eichel- 
berger  v.  Barnitz,  1  Yeates,  307  ;  Pearce 
V.  Blackwell,  12  Ire.'  L.  49.     The  case 
of  Hill  v.  Gray,   1    Stark.  434,  might 
seem  at  first  view  to  conflict  with  this 
doctrine.      There   a  picture   was   sold, 
which  the  buyer  believed  had  been  the 
property  of  Sir  Felix  Agar,  a  circum- 
stance which  might  have  enhanced  its 
value  in  his  eyes.     The  seller  knew  that 
the  purchaser  was  laboring  under  this 
delusion,  but  did  not  remove  it,  and  it 
did  not  appear  that  he  either  induced 
or  strengthened  it.     In  an  action  for  the 
price,  Lord  Ellenborough  nonsuited  the 
plaintiff,  saying  the   picture  was    sold 
under  a  deception.    The   seller  ought 
not  to  have  let  in  a  suspicion  on  the 
part  of  the  purchaser  which  he   knew 
enhanced  its  value.    He  saw  the  pur- 
chaser had  fallen   into  a  delusion,  but 
did  not  remove  it.     From  the  report 


itself,  it  might  seem  that  Lord  Ellen- / 
borough  here  held    that  silence   alone  C 
was    a    fraudulent    concealment,    suffi-/ 
cient  to  vitiate  the  contract.    But  thei 
case  is  explained  in  the  late  English  y 
case  of  Keates  v.  Cadogan,  2  E.  L.  &  E.  / 
318,  Jervis,  C.  J.,  saying  in  Hill  v.  Gray,  \ 
there  was  a  ^'positive  aggressive  deceit. 
Not  removing  the  delusion  might  be 
equivalent  to  an  express  misrepresenta-. 
tion."_   And   in   that   case   it  was  held 
that  where  the  intended  lessor  of  a  par- 
ticular house  knows  that  the  house  is  in 
a  ruinous  state,  and  dangerous  to  oc- 
cupy, and  that  its  condition  is  unknown 
to   the   intended    lessee,  and  that    the 
intended  lessee  takes  it  for  the  purpose 
of  residing  in  it,  he  is  not  bound  to  dis- 
close the  state  of  the  house  to  the  in- 
tended lessee,  .unless  he  knows  that  the 
intended    lessee    is    influenced    by   his 
belief  of  the  soundness  of  the  house  in 
agreeing  to  take  it,  or  unless  the  con- 
duct of  the  lessor  amounts  to  a  deceit 
practised   upon   the    lessee.     See    also 
Fox  V.  Mackreth,  2  Bro-  C.  C.  420.  — 
On   the  other   hand,   the  vendor  must 
not  practice  any  artifice  to  conceal  de- 
fects, nor  make  any  representations  for 
the  purpose  of  throwing  the  buyer  off  his 
guard.     See  Matthews  v.  Bliss,  22  Pick. 
48;   Arnot  v.  Biscoe,  1  Ves.  Sen.  95. 
For  it  is  well  settled  that  misrepresenta- 
tions of  material  facts,  by  which  a  pur- 
chaser is   misled,  vitiate  the  contract. 
Bench     v.     Sheldon,     14     Barb.     66  ; 
Doggett    V.   Emerson,   3    Story,    700  ; 
Daniel  v.  Mitchell,  1  Id.  172;  Small  v. 
Attwood,    1    Younge,   407 ;    Hough  i'. 
Richardson,  3   Story,  659  ;    Warner  v. 
Daniels,  1  W.  &  M.   90.     The   whole 
subject  is  ably  examined  in  2   Kent's 
Com.  482,  et  seq.     See    also    Bean   v. 
Herrick,  3  Fairf.  262  ;  Ferebee  v.  Gor- 
don, 13  Ire.  L.  350;  Wood  v.  Ashe,  3 
Strob.  L.  64. 

(m)  Thus,  in  Amott  v.  Hughes. 
Chitty  on  Cont.  393,  note,  an  action 
was  brought  on  a  warranty  that  certain 
goods  were  fit  for  the  China  market. 
The  plaintiflT  produced  a  letter  from  the 
defendant,  saying  that  he  had  goods  fit 
for  the  China  market,  which  he  offered 
to  sell  cheap.  Lord  Ellenborough  held 
that  such  a  letter  was  not  a  warranty, 

[477] 


463 


THE  LAW  OF  CONTRACTS. 


BOOK  III. 


lity  made  by  the  owner  during-  a  negotiation  {n)  for  the  sale 
of  a  chattel,  which  it  may  be  supposed  was  intended  to  cause 
the  sale,  and  was  operative  in  causing  it,  will  be  regarded 
either  as  implying  or  as  constituting  a  warranty.  If  such 
affirmation  were  made  in  good  faith  it  is  still  a  warranty  ; 
and  if  made  with  a  knowledge  of  its  falsity,  it  is  a  warranty, 
and  it  is  also  a  fraud. 

It  is  certain  that  the  word  warrant  need  not  be  used,  nor 
any  other  of  precisely  the  same  meaning.  It  is  enough  if 
the  words  actually  used  import  an  undertaking  on  the  part 
of  the  owner  that  the  chattel  is  what  it  is  represented  to  be  ; 
or  an  equivalent  to  such  undertaking,  (o)     It  may  be  often 


but  merely  an  invitation  to  trade,  it  not 
having  any  specific  reference  to  the 
goods  actually  bought  by  the  plaintiff. 

(n)  It  is  essential  that  a  warranty,  to 
be  binding,  be  made  during  the  nego- 
tiation ;  if  made  after  the  sale  is  com- 
pleted it  is  without  consideration  and 
void.  Roscorla  v,  Thomas,  3  Q.  B. 
234 ;  Bloss  v.  Kittridge,  5  Verm.  28 ; 
Towell  V.  Gatewood,  2  Scaramon,  22. — 
If,  however,  the  vendor,  in  a  negotia- 
tion between  the  parties  a  few  days  be- 
fore the  sale,  offer  to  warrant  the  article, 
the  warranty  will  be  binding.  Wilmot 
V.  Hurd.  11  Wend.  584;  Lysney  v.  Sel- 
by,  Ld.  Eaym.  1120. 

(o)  The  authorities,  from  Chandelor 
V.  Lopus,  Cro.  Jac.  4,  to  the  present 
day,  all  agree  that  a  bare  affirmation, 
not  intended  as  a  warranty,  will  not 
make  the  vendor  liable.  Bacon  v. 
Brown,  3  Bibb,  35 ;  Davis  v.  Meeker, 
5  Johns.  354;  Budd  v.  Fairmaner,  8 
Bing.  52,  where  a  receipt  for  "  a  grey 
four  year  old  colt"  was  held  only  an 
affirmation  or  representation  that  he 
was  four  years  old,  but  was  no  war- 
ranty to  that  effect.  See  also  Seixas  v. 
Woods,  2  Cairies,  48,  a  very  strong 
case;  Holden  v.  Dakin,  4  Johns.  421  ; 
Swett  r.  Colgate,  20  Johns.  196;  Con- 
ner V.  Henderson,  15  Mass.  320  ;  Stew- 
art V.  Dougherty,  3  Dana,  479 ;  House 
V.  Fort,  4  Blackf.  293.  So  where  a 
horse  was  sold  under  the  following  ad- 
vertisement:—  "To  be  sold,  a  black 
gelding,  five  years  old ;  has  been  con- 
stantly driven  in  the  plough.  War- 
ranted," the  warranty  was  held  to  apply 
only  to  his  soundness,  and  the  state- 
ment as  to  age  was  considered  only  as 

[478] 


an  affirmation  or  representation  of  his 
age,  and  as  creating  no  liability  unless 
there  was  deceit.     Richardson  v.  Brown, 
1  Bing.  344.     For  similar  instances,  see 
Dunlop  V.  Waugh,  Peake,  123  ;  Power 
V.  Barbara,  4  Ad.  &  El.  473  ;  Jendwine 
V.  Slade,  2  Esp.  572 ;  Willard  v.  Ste- 
vens, 4  Foster,  271.     On  the  other  hand, 
any  affirmation  of  the  quality,  or  con- 
dition of  the  thing  sold,  (not  intended 
as  matter  of  opinion  or  belief,)  made 
by  the  seller  at  the  time  of  sale,  for  the 
purpose  of  assuring   the  buyer  of  the 
truth  of  the  fact  affirmed,  and  inducing 
him  to  make  the  purchase,  if  so  received 
and  relied  upon  by  the  purchaser,  is  an 
express  warranty.     Osgood  v.  Lewis,  2 
Har.  &  Gill,  495,  a  very  important  case 
on  the  subject  of  warranty.     Hawkins 
V.  Berry,  5  Oilman,  36  ;  .Hillman  v.  Wil- 
cox, 30  Maine,  170;  Otts  v.  Alderson, 
10    S.   &  M.  476;  McGregor  v.  Penn, 
9   Ycrg.  74 ;   Kinley  v.  Fitzpatrick,   4 
Howard,  (Miss.)  59  ;  Beals  v.  Olmstead, 
24    Verm.    115.      See   also   Towell  v. 
Gatewod,   2    Scammon,    22 ;    Pennockv* 
V.  Tilford,  17  Penn.  456.     In  Roberts/? 
V.   Morgan,    2    Cow.   438,  the  plaintiff  '' 
and  defendant  being  in  negotiation  for  [ 
an  exchange  of  horses,  the  former  said  ^ 
"  he  would  hot  exchange  unless    the 
latter  would   wai-rant  his  horse  to  be'    , 
sound."     The  defendant  answered: —    -' 
"  He  is  sound,  except  the  bunch  on  his     ] 
leg."     The    horse    had    the    glanders.  ^ 
Held,  that  this  was   an  express  war-^ 
ranty.     See  also   Oneida  Manuf.   So-^ 
ciety  V.  Lawrence,  3  Cow.  440 ;  Chap-P^ 
man  v.  Murch,  19  Johns.  290.    In  Cook 
V.  Mosely,  13  Wend.  277,  (a  sale  of  a 
mare,)  the  buyer  asked  the  seller  if  the 


CH.   v.] 


WARRANTY. 


464 


difficult  to  distinguish  between  such  warranty  as  this,  and 
the  naked  praise  {rmda  laus)  or  a  simple  commendation,  {sim- 
plex  commendatio)  which  neither  by  the  common  law  nor  by 
the  civil  law  impose  any  obligation ;  but,  as  matter  of  law, 
the  distinction  is  well  settled.  If  a  bill  of  sale  be  given,  in 
which  the  article  sold  is  described,  we  consider  it  now  settled 
that  this  description  has  the  full  effect  of  warranty,  [p) 


mare  was  lame ;  the  latter  answered :  — 
"  She  was  not  lame,  and  that  he  would 
not  be  afraid  to  warrant  that  she  was 
sound  every  way,  as  far  as  he  knew." 
Held  to  amount  to  a  warranty.  In 
Beeman  v.  Buck,  3  Verra.  53,  the  same 
principle  is  adopted.  So  in  Wood  '  v. 
Smith,  4  C.  &  P.  45,  the  buyer  of  a 
horse  said  to  the  seller :  "  She  is  sound, 
of  course  1 "  The  latter  said  :  "  Yes, 
to  the  best  of  my  knowledge."  On 
being  asked  if  he  would  warrant  her, 
he  replied :  "  I  never  warrant.  I  would 
not  even  warrant  myself."  This  was 
held  to  amount  to  a  qualified  warranty. 
The  general  rule  of  the  text  is  well 
stated  in  Ricks  v.  Dillahunty,  8  Porter, 
134.  See  also  Carley  i'.  "Wilkius,  6 
Barb.  557,  where  it  was  held  that  a  re- 
presentation made  by  a  vendor,  upon  a 
sale  of  flour  in  barrels,  that  it  is  in  qua- 
lity superfine,  or  extra  superfine,  and 
worth  a  shilling  a  barrel  more  than 
common,  coupled  with  the  assurance  to 
the  buyer's  agent  that  he  may  rely  upon 
such  representation,  is  a  warranty  of 
the  quality  of  the  flour.  In  Cave  v. 
Coleman,  3  M.  &  R.  2,  the  vendor  of  a 
hoi'se  told  the  vendee,  "you  may  de- 
pend upon  it,  the  horse  is  perfectly 
quiet,  and  free  from  vice."  This  was 
held  to  amount  to  an  express  warranty. 
But  see  Erwin  v.  Maxwell,  3  Murphy, 
241.  In  Jackson  v.  Wetherill,  7  Serg. 
&  Rawle,  480,  the  Supreme  Court  of 
Pennsylvania,  although  recognizing  tlie 
rule  that  no  particular  words  were  ne- 
cessary to  constitute  a  warranty,  held, 
that  when  the  vendor  of  a  horse  told  the 
purchaser  before  the  sale  that  he  was 
sure  she  was  perfectly  safe,  kind,  and  gen- 
tle in  harness,  this  created  no  warranty, 
being  but  a  bare  affirmation  of  quality. 
See  also  McFarland  v.  Newman,  9 
Watts,  56,  S.  P.  In  Shepherd  v.  Tem- 
ple, 3  New  Hamp.  455,  the  vendor  of  a 
lot  of  timber,  most  of  which  was  cover- 
ed with  snow,  declared  that  it  was  of 
as  good  quality  as  some  of  the  sticks 


which  were  visible ;  held  that  this  did 
not  necessarily  amount  to  a  warranty. 
See  Stevens  v.  Puller,  8  N.  Hamp.  463, 
as  to  what  is  competent  evidence  to  prove 
a  warranty.  A  statement  that  a  horse's 
eyes  "  are  as  good  as  any  horse's  eyes 
in  the  world,"  does  not,  of  itself,  neces- 
sarily amount  to  a  warranty.  House  v. 
Fort,  4  Blackf  293.  The  question 
whether  any  particular  afiirmation 
amounts  to  a  warranty  is  for  the  jury. 
The  criterion  is  the  understanding  and 
intention  of  the  parties.  Dufi'ee  v.  Ma- 
son, 8  Cow,  25 ;  Morrill  v.  Wallace,  9 
New  Hamp.  Ill;  Chapman  v.  Murch, 
19  Johns.  290.  It  is  for  the  jury  to  say 
whether  the  language  used  was  intended 
as  a  mere  expression  of  opinion,  or  be- 
lief, or  as  a  representation.  Whitney  v. 
Sutton,  10  Wend.  411  ;  Poster  v.  Cald- 
well, 18  Verm.  176;  Bradford  v.  Bush, 
10  Ala.  386;  Baum  v.  Stevens,  2  Ired. 
411;  Poggart  v.  Blackwcller,  4  Ired. 
238.  A  bare  afiirmation  of  soundness/ 
of  a  horse  which  is  then  exposed  to  the  } 
purchaser's  inspection,  is  not,  per  se,  a 
warranty.  It  is  of  itself  only  a  repre- 
sentation. To  give  it  the  effect  of  a 
warranty,  it  must  be  shown  to  the  satis- 
faction of  the  jury  that  the  parties  in- 
tended it  to  have  that  effect.  House  v. 
Fort,  4  Blackf.  290.  Sec  also  Tyre  v.  ]• 
Causey,  4  Harring.  425.  The  affirmation  / 
must  be  made  to  assure  the  buyer  of  l„ 
the  truth  of  the  fact  asserted,  and  in-  • 
duce  him  to  make  the  purchase,  and 
must  be  so  received  and  relied  upon  by 
him.  Ender  v.  Scott,  11  Illinois,  35; 
Humphreys  v.  Comline,  8  Blackf.  508. 

(p)  Henshaw  v.  Robins,  9  Met.  83,  is 
one  of  the  best  considered,  as  well  as 
one  of  the  most  recent  cases  upon  this 
subject.  There  the  bill  of  sale  was  as 
follows:  —  "Henshaw  &  Co.  bo't  of 
T.  W.  S.  &  Co.  two  cases  of  indigo, 
$272.35."  The  article  sold  was  not 
indigo,  but  principally  Prussian  blue. 
There  was  no  fraud  imputed  to  the 
vender,  and  the  article  was  so  prepared 

[479] 


465 


THE   LAW   OF  CONTRACTS. 


BOOK  III. 


One  exception  to  the  rule  of  caveat  emptor  springs  from 
the  rule  itself.     For  a  requirement  that  the  purchaser  should 


as  to  deceive  skilful  dealers  in  indigo. 
The  naked  question  was  presented,  whe- 
ther the  bill  of  sale  constituted  a  war- 
ranty that  the  article  was  indigo.  The 
court,  after  an  able  analysis  of  the  cases 
upon  this  point,  decided  in  the  affirma- 
tive. The  same  question  had  been  very 
ably  considered  by  the  same  court  in 
the  prior  case  of  Hastings  r.  Lovering, 
2  Pick.  214.  In  that  case  the  bill  of 
parcels  was  :  —  "  Sold  E.  T.  H.  2000 
gallons  prime  quality  winter  oil."  The 
article  sold  was  o//,  but  was  not  prime 
quality.  In  this  respect  the  case  differs 
from  the  preceding.  There  the  kind  of 
commodity  was  different ;  here  only  the 
quality.  The  court  applied  the  same 
rule,  and  held  the  writing  to  be  a  war- 
ranty that  the  article  was  of  the  quality 
described.  So,  in  Yates  v.  Pym,  6 
Taunt.  446,  the  article  was  described  in 
the  sale  note  as  "  58  bales  of  prime 
singed  bacon."  It  was  held  to  amount 
to  a  warranty  that  the  bacon  was  prime 
singed.  Osgood  v.  Lewis,  2  Harr.&  Gill. 
495,  supports  the  same  view  ;  in  that 
case  the  words  in  the  bill  of  parcels  were, 
"  winter  pressed  sperm  oil."  This  was 
considered  as  a  warranty  that  the  oil 
was  winter  pressed.  So  in  The  Rich- 
mond Trading  &c.  Co.  v.  Farquar,  8 
Blackf.  89,  it  was  held,  where  wool  was 
sold  in  sacks,  and  the  sacks  marked  by 
the  seller  and  described  in  the  invoice  as 
being  of  a  certain  quality,  that  this  is 
an  express  wan-anty  that  it  is  of  such 
quality.  And  where  a  vessel  was  ad- 
vertised for  sale  as  being  "  copper  fas- 
tened," this  was  held  to  be  a  warranty 
that  she  was  so,  according  to  the  under- 
standing of  the  trade.  Shepherd  v. 
Kain,  5  B.  &  Aid.  240.  See  Paton  v. 
Duncan,  3  C.  &  P.  336 ;  Teesdale  v. 
Anderson,  4  C.  &  P.  198;  Wilson  v. 
Backhouse,  Peake's  Add.  Cas.  119. — 
So  in  Pennsylvania  it  is  held,  that  in  a 
sale  of  goods  described  in  a  bill  or  sold 
note,  there  is  an  implied  warranty  that 
the  commodity  sold  is  the  same  in 
specie  as  the  description  given  of  it  in 
the  bill.  Borrekins  v.  Bevan,  3  Rawle, 
23.  But  the  courts  of  that  State  re- 
fuse to  extend  the  same  doctrine  to 
a  statement  of  quality  of  the  articles 
sold.  Therefore,  where  the  article  was 
described  in  the  bill  of  sale  as  '^supe- 
rior sweet-scented  Kentucky  leaf  tobacco," 

[480] 


the  seller  was  held  not  liable  on  a  war- 
ranty, if  the  tobacco  was  Kentucky 
leaf,  though  of  a  very  low  quality,  ill- 
flavored,  unfit  for  the  market,  and  not 
sweet-scented.  Fraley  v.  Bispham,  10 
Barr,  320.  And  see  Jennings  v.  Gratz, 
3  Rawle,  168.  See  also  Hyatt  v.  Boyle, 
5  Gill  &  Johns.  110.  A  contract  for 
"  good  fine  wine"  has  been  held  to 
import  no  warranty,  these  words  be- 
ing too  uncertain  and  indefinite  to  raise 
a  warranty.  Hogins  v.  Plymton,  11 
Pick.  97.  A  warranty  that  certain 
oil  "should  stand  the  climate  of  Ver- 
mont without  chilling,"  means  that  the 
oil  will  not  chill,  when  used  in  Ver- 
mont, in  the  ordinary  manner  lamp 
oil  is  used.  Hart  v.  Hammett,  18 
Verm.  127.  So  a  bill  of  sale  describ- 
ing the  article  sold  simply  as  "  tallow," 
raises  no  implied  warranty  that  the 
tallow  should  be  of  good  quality  and 
color.  Lamb  v.  Crafts,  12  Met.  353. 
And  in  a  bill  of  sale  of  "  certain  lots 
of  boards  and  dimension  stuff  now  at 
and  about  the  mills  at  P.,"  there  is 
no  implied  warranty  that  the  boards 
are  merchantable.  Whitman  v.  Freese, 
23  Maine,  212.  A  bill  of  sale  of  a 
negro  described  her  as  "  being  of  sound 
wind  and  limb  and  free  from  all  dis- 
ease." Held,  an  express  warranty  that 
she  was  sound.  Cramer  v.  Bradshaw, 
10  Johns.  484.  But  a  bill  of  sale  of  a 
horse,  as  follows  :  —  "  T.  W.  bought 
of  E.  R.  one  bay  horse,  five  years  old 
last  July,  considered  sound,"  signed 
by  the  vendor,  creates  no^  warranty  of 
the  soundness  of  the  horse.  Wason  v. 
Rowe,  10  Verm.  525.  See  also  Towell 
V.  Gatewood,  2  Scammon,  22 ;  Baird 
V.  Matthews,  6  Dana,  129.  So  in  Wiu- 
sor  V.  Lombard,  18  Pick.  57,  the  bill 
of  sale  described  the  article  as  so  many 
"  barrels  No.  1  mackerel,  and  so  many 
barrels  No.  2  mackerel."  The  mackerel 
sold  were  in  fact  branded  by  the  in- 
spector as  No.  1  and  No.  2.  It  was 
held  there  was  no  implied  warranty 
that  they  were  free  from  rust  at  the 
time  of  sale,  although  it  was  proved 
that  mackerel  affected  by  rust  are  not 
considered  No.  1  and  No.  2.  But  the 
general  doctrine  of  this  note  was  ex- 
pressly recognized  by  Shaiv,  C.  J.,  who 
said :  — ''  The  rule  being,  that  upon  a 
sale  of  goods  by  a  written  memoran- 


CH.   v.] 


WARRANTY. 


466 


"  beware,"  or  should  take  care  to  ascertain  for  himself  the 
quality  of  the  thing  he  buys,  becomes  utterly  unreasonable, 
under  circumstances  which  make  such  care  impossible.  If, 
therefore,  the  seller  alone  possesses  the  requisite  knowledge, 
or  the  means  of  knowledge,  and  offers  his  goods  for  sale  un- 
der circumstances  which  compel  the  purchaser  to  rely  upon 
the  judgment  and  honesty  of  the  seller,  without  any  exami- 
nation on  his  own  part  as  to  the  quality  of  the  thing  offered, 
it  has  been  held  that  the  rule  of  caveat  emptor  does  not  apply, 
because  it  cannot  apply,  and  that  the  seller  warrants  that  the 
goods  he  offers  for  sale  are  in  respect  to  their  qualities  what 
the  purchaser  may  fairly  understand  them  to  be  ;  in  other 
words,  that  they  are  of  merchantable  value,  and  proper  sub- 
jects of  trade.  (^) 

It  might  seem  that  the  reason  of  this  rule  should  apply  to 
all  cases  where  an  article  is  sold  of  which  the  value  is  mate- 
rally  affected  by  some  defect  which  the  buyer  cannot  know 


dum  or  bill  of  parcels,  the  vendor  un- 
dertakes, in  the  nature  of  warranting, 
that  the  thing  sold  and  delivered  is  that 
which  is  described,  this  rule  applies 
whether  the  description  be  more  or  less 
particular  and  exact  in  enumerating  the 
qualities  of  the  goods  sold."  In  some 
early  cases  in  America,  it  was  held  that 
the  description  given  to  property  in  ad- 
vertisements, bills  of  sale,  sold  notes, 
&c.,  did  not  enter  into  the  contract, 
and  therefore  being  but  matters  of  de- 
scription, created  no  warranty.  Such 
are  the  cases  of  Seixas  v.  Woods,  2 
Caines,  48 ;  Barrett  v.  Hall,  1  Aikens, 
269;  Sweet  v.  Colgate,  20  Johns.  196, 
and  some  others ;  but  we  think  the 
more  modern  cases  have  decided  that  a 
rule  of  law,  in  itself  sound,  was  in  those 
instances  erroneously  applied.  See  Hen- 
shaw  V.  Robins,  9  Met.  83,  and  2  Kent's 
Com.  489.  See  also  the  valuable  notes 
to  Chandelor  v.  Lopus,  I  Smith's  Lead. 
Cas.  76,  et  seq.,  where  will  be  found  an 
able  examination  of  the  whole  subject 
of  warranty. 

(q)  Hanks  v.  McKee,  2  Litt.  227. 
Gardiner  v.  Gray,  4  Camp.  144,  is  the 
leading  case  upon  this  point.  In  that 
case  Lord  Ellenborough,  speaking  to  this 
point,  says  :  —  '"I  am  of  opinion  that 
under  such  circumstances  the  purchaser 
has  a  right  to  expect  a  salable  article 
answering  the  description  in  the  con- 
VOL.   L  41 


tract.  Without  any  particular  war- 
ranty, this  is  an  implied  term  in  every 
such  contract.  Where  there  is  no  op- 
portunity to  inspect  the  commodity,  the 
maxim  of  caveat  emptor  does  not  apply. 
He  cannot  without  a  warranty  insist 
that  it  shall  be  of  any  particular  qua- 
lity or  fineness,  but  the  intention  of 
both  parties  must  be  taken  to  be,  that 
it  shall  be  salable  in  the  market  under 
the  denomination  mentioned  in  the  con- 
tract between  them.  The  purchaser 
cannot  be  supposed  to  buy  goods  to 
place  them  on  a  dunghill."  See  also 
the  case  of  Gallagher  v.  Waring,  9 
Wend.  20,  where  the  court  were  in- 
clined to  extend  the  rule  to  the  case  of 
a  sale  of  cotton  in  bales,  lying  in  the 
storehouse  of  the  vendor,  situate  in  the 
place  where  both  vendor  and  vendee  re- 
sided, notwithstanding  that  the  vendor 
had  no  better  opportunity  than  the  ven- 
dee for  the  inspection  of  the  article. 
The  case  of  Hyatt  v.  Boyle,  5  Gill  & 
Johns.  110,  also  holds  that  the  rule  of 
caveat  emptor  docs  not  apply,  if  the 
buyer  has  no  opportunity  to  inspect  the 
goods,  and  in  such  case  the  seller  im- 
pliedly warrants  them  to  be  merchant- 
able. But  the  mere  fact  that  the  exa- 
mination is  attended  with  incoiiveniaice 
to  the  purchaser  is  not  sufficient  to  dis- 
pense with  the  rule.  It  must  be  mo- 
rally impracticable. 

[481] 


467' 


THE  LAW   OF   CONTRACTS. 


[book  hi. 


/  or  discover.  But  it  is  not  yet  conceded  that  in  all  such 
/'  cases  there  is  an  implied  warranty.  The  implication  does  not 
*appear  to  extend  to  cases  where  an  examination  would  be 
fruitless,  but  only  to  those  in  which  there  can  be  no  exami- 
nation. It  is  true,  that  in  the  fluctuation  which  has  marked 
the  course  of  adjudication  on  the  subject  of  warranty  with 
sale  there  is  a  series  of  cases,  in  which,  for  a  considerable 
time,  a  principle  seemed  to  be  acquiring  favor,  which  was 
almost  equivalent  to  a  rule  that  every  sale  carried  with  it  an 
implied  warranty  of  the  merchantable  quality  of  the  goods 
sold.  Of  course  such  a  rule  would  in  fact  annul  that  of 
caveat  emptor.  But  of  late  the  courts  seem  to  be  retracing 
their  steps;  and,  in  this  country  at  least,  we  consider  the 
ancient  rule  as  distinctly  established,  (r)  There  are  but  two 
of  our  States  in  which  it  is  an  acknowledged  rule  of  law  that 
a  sale  of  a  chattel  for  a  full  price  carries  with  it  an  implied 
warranty.  And  in  one  of  these  the  civil  law,  of  which  this 
is  a  principle,  prevails,  [s) 
J-  If  goods  are  sold  by  sample,  there  can  be  no  examination 

of  the  goods,  but  there  may  be  of  the  sample.  There  is, 
therefore,  an  implied  warranty  that  the  goods  correspond  to 
the  sample,  [t)     But  if  they  do  correspond,  and  the  sample 


(r)  The  weight  of  authority  decidedly 
determines  that  a  sale  for  a  sound  price 
implies  no  warranty  of  quality,  or  that 
the  article  is  merchantable.  Dean  v. 
Mason,  4  Conn.  428,  an  able  case  on 
this  subject ;  Holden  v.  Dakin,  4  Johns. 
421 ;  Snell  v.  Moses,  1  Johns.  96 ;  John- 
ston V.  Cope,  3  Harr.  &  Johns.  89 ;  Coz- 
zins  V.  Whitaker,  3  Stew.  &  Port.  322; 
La  Neuville  v.  Nourse,  3  Camp.  351 ; 
West  V.  Cunningham,  9  Port.  104. 

(s)  South  Carolina  and  Louisiana 
alone,  of  American  States,  hold  that  a 
sale  of  a  chattel  for  a  sound  price  creates 
a  warranty  against  all  faults  known  or 
unknown  to  the  seller.  Timrod  v. 
Shoolbred,  1  Bay,  324  ;  Dewees  v. 
Morgan,  1  Martin,  1  ;  State  v.  Gaillard, 
2  Bay,  19;  Barnard  v.  Yates,  1  N.  & 
McC.  142;  Missroon  v.  Waldo,  2  N.  & 
McC.  76;  Melan9on  v.  Robichaux,  17 
Louisiana,  E.  97.  But  this  does  not 
extend  to  sales  of  real  estate.  Rupart 
V.  Dunn,  1  Richardson,  101.  And  in 
sales  of  personal  property,  if  the  buyer 

£482] 


is  informed  fully  of  all  the  circum- 
stances, and  has  a  fair  opportunity  of 
informing  himself,  he  is  bound  by  his 
contract,  although  it  be  a  losing  one. 
Whitefield  v.  McLeod,  2  Bay,  380.  And 
see  Camochan  v.  Gould,  1  Bailey,  179; 
Rose  V.  Beatie,  2  N.  &  McC.  538.  And 
if  the  parties  expressly  agree  that  the 
buyer  shall  take  the  property  at  bis  own. 
risk,  the  vendor  is  not  answerable  for 
its  soundness.  Thompson  v.  Lindsay, 
3  Brev.  305.  And  a  sound  price  does 
not  imply  a  value  of  the  property  equal 
to  the  price,  but  only  that  there  is  no 
unsoundness.  And  such  unsoundness 
must  materially  affect  the  article.  Smith 
V.  Rice,  1  Bailey,  648. 

(t)  Bradford  v.  Manly,  13  Mass.  139, 
a  leading  case  in  America  upon  this 
point.  Oneida  Manuf.  Co.  v.  Law- 
rence, 4  Cow.  440 ;  Andrews  v.  Knee- 
land.  6  Cow.  354;  Gallagher  v.  Waring, 
9  Wend.  20;  Beebee  v.  Robert,  12 
Wend.  413;  Boorman  v.  Jenkins,  12 
Wend.  566 ;  Moses  v.  Mead,  I  Denio, 


CH.   v.] 


WARRANTY. 


468 


itself  has  a  defect,  even  if  this  defect  be  unknown,  and  not 
discoverable  by  examination,  there  is  no  implied  warranty 
against  this  defect,  and  the  seller  is  not  responsible,  (m)  If 
there  be  an  express  warranty,  an  examination  of  samples  is 
no  waiver  of  the  warranty ;  nor  is  any  inquiry  or  examination 
into  the  character  or  quality  of  the  things  sold;  for  a  man 
has  a  right  to  protect  himself  by  such  inquiry,  and  also  by  a 
warranty,  (mm) 

If  a  thing  be  ordered  of  the  manufacturer  for  an  especial 
purpose,  and  it  be  supplied  and  sold  for  that  purpose,  there 


386 ;  Borrekins  v.  Bevan,  3  Rawle,  37  ; 
Eose  V.  Beatie,  2  N.  &  McC.  538  ; 
Beirne  v.  Dord,  2  Sandf.  89,  an  excel- 
lent case  upon  this  point.  It  is  there 
held  that  in  order  to  constitute  a  sale  by 
sample,  it  must  appear  that  the  parties 
contracted  solely  in  reference  to  the 
sample,  or  article  exhibited,  and  that 
both  mutually  understood  they  were 
dealing  with  the  sample,  and  with  an 
understanding  that  the  bulk  was  like  it. 
And  in  the  same  case  upon  appeal,  1 
Selden,  95,  and  in  Hargous  v.  Stone,  1 
Selden,  73,  it  is  decided  that  the  mere 
exhibition  of  a  sample  is  not  sufficient 
to  constitute  a  warranty  that  the  bulk  of 
the  goods  is  of  the  same  quality  with  the 
sample,  that  such  exhibition  is  but  a 
representation  that  the  sample  has  been 
fairly  taken  from  the  bulk  of  the  com- 
modity, and  that  for  the  production  of 
the  sample  to  have  the  effect  of  a  strict 
warranty  it  must  be  shown  that  the  par- 
ties mutually  understood  that  there  was 
an  agreement  on  the  part  of  the  seller 
that  the  bulk  of  the  commodity  should 
correspond  with  the  sample.  —  An  op- 
portunity for  a  personal  examination 
of  the  bulk  is  a  strong  circumstance 
against  considering  the  sale  to  have 
been  made  by  sample.  Hargous  v. 
Stone,  1  Seld.  73  ;  Beirne  v.  Dord,  1 
Scld.  95.  Sec  also  Waring  v.  Mason, 
18  Wend.  434.  In  Williams  v.  Staf- 
ford, 8  Pick.  250,  a  leather  bag  of  indigo 
was  sold,  which  the  bill  of  sale  described 
as  "  one  seroon  of  indigo."  There  was 
a  small  triangular  hole  on  one  side  of 
the  seroon,  where  the  purchaser  might 
draw  out  a  specimen,  and  at  the  sale  the 
plaintiff  examined  the  article  ^n  this 
mode.  The  seroon'prdved  to  be  mainly 
filled  with  other  substances  than  indigo. 
It  was  held  a  sale  "  by  sample,"  and  that 
there  was  a  warranty  that  the  bulk  was 


of  the  same  kind  and  quality  with  the 
sample.  In  Salisbury  v.  Stainer,  19 
Wend.  159,  several  bales  of  hemp  were 
sold.  The  purchaser  was  told  to  exa- 
mine the  hemp  for  himself.  He  cut 
open  one  bale,  and  appeared  satisfied 
with  the  quality.  He  might  have  cut 
open  every  bale,  had  he  chosen  to  do  so. 
It  was  proved  that  the  interior  of  the 
bales  consisted  of  tow,  and  of  a  quality 
of  hemp  very  much  inferior  to  that  on 
the  outside  of  the  bales.  This  was  held 
not  to  be  a  sale  by  sample,  and  that 
there  was  no  warranty  that  the  interior 
should  correspond  with  the  exterior  of 
the  bales. 

(m)  Parkinson  v.  Lee,  2  East,  314; 
a  very  important  case  upon  this  sub- 
ject, which  has  been  much  discussed, 
and  sometimes  doubted,  but  which, 
when  properly  understood,  seems  to  be 
well  supported  by  principle  and  analo- 
gy. It  was  a  sale  of  five  pockets  of 
hops,  with  express  warranty  that  the 
bulk  answered  the  samples  by  which 
they  were  sold.  The  sale  was  in  Janu- 
ary, 1801  ;  at  that  time  the  samples /airly 
ansivered  to  the  commodity  in  bulk,  and  no 
defect  was  at  that  time  perceptible  to  the 
buyer.  In  July  following  every  pocket 
was  found  to  have  become  unmerchant- 
able and  spoiled,  by  heating,  caused 
probably  by  the  hops  having  been 
fraudulently  watered  by  the  grower,  or 
some  other  person,  before  they  were 
purchased  by  the  defendant.  The  de- 
fendant knew  nothing  of  this  fact  at  the 
time  of  sale,  and  it  was  then  impossible 
to  detect  it.  It  was  held  that  there  was 
here  no  implied  warranty  that  the  bulk 
of  the  commodity  was  merchantable  afr 
the  time  of  sale,  although  a  merchant- 
able price  was  given. 

(uu)  Willings  v.  Consequa,  Pet.  C  C 
301. 

[483] 


469' 


THE  LAW   OF   CONTRACTS. 


[book  III. 


is  an  implied  warranty  that  it  is  fit  for  that  purpose,  (v) 
*This  principle  has  been  carried  very  far.  It  must,  however, 
be  limited  to  cases  where  a  thing  is  ordered  for  a  special 


(y)  Beals  v.  Olmstead,  24  Verm.  114. 
Jones  V.  Bright,  5  Bing.  533,  is  the 
leading  English  case  on  this  subject. 
There  the  defendant  was  a  manufacturer 
and  vendor  of  copper.  The  plaintiff 
applied  to  him  "  for  copper  for  sheathing 
a  vessel."  The  defendant  said  :  "  I  will 
supply  you  well."  Prom  the  defend- 
ant's warehouse  the  plaintiff's  agent 
then  selected  such  copper  as  was  want- 
ed, and  applied  it  to  plaintiff's  vessel. 
It  proved  to  be  very  defective,  and 
lasted  only  about  four  months,  in  place 
of  four  years,  the  usual  time  of  wear  of 
good  sheathing ;  the  jury  found  that  the 
decay  was  caused  by  some  intrinsic  de- 
fect in  the  quality  of  the  copper,  but 
that  there  was  no  satisfactory  evidence 
of  what  the  defect  was.  No  fraud  was 
imputed  to  the  defendant.  After  full 
argument  and  deliberation,  it  was  held 
by  the  whole  Court  of  Common  Pleas 
that  there  was  an  implied  warranty  that 
the  article  was  fit  for  the  purpose  for 
which  it  was  sold.  See  also  Brenton  r. 
Davis,  SBlackf.  317.  Laingr.  Fidgeon, 
6  Taunt.  108,  is  also  an  important  case. 
The  defendant  was  a  saddle  manufac- 
turer. He  sent  the  plaintiff  a  sample  of 
saddles  that  could  be  made  for  a  certain 
price.  The  plaintiff  then  gave  him  an 
order  for  "  goods  for  North  America,  3 
dozen  single  flap  saddles,  24s.  a  26s. 
■with  cruppers,  &c."  The  saddles  de- 
livered were  inferior  in  material  and 
workmanship,  useless  and  tinmerchant- 
ahle,  and  did  not  correspond  with  the  sam- 
ple sent.  The  court  held  the  whole 
transaction  to  amount  to  a  contract 
that  the  article  should  be  merchantable, 
and  the  plaintiff  had  judgment.  Brown 
V.  Edgington,  2  M.  &  Gr.  279,  also  de- 
serves attention.  The  defendant  was  a 
dealer  in  ropes,  and  represented  himself 
to  be  a  manufacturer  of  the  article.  The 
plaintiff,  a  wine  merchant,  applied  to 
him  for  a  crane  rope.  The  defendant's 
foreman  went  to  the  plaintiff's  premises, 
in  order  to  ascertain  the  dimensions 
and  kind  of  rope  required.  He  exa- 
mined the  crane  and  the  old  rope,  and 
*took  the  necessary  admeasurements,  and 
•was  told  that  the  new  rope  was  wanted 
for  the  purpose  of  raising  pipes  of  wine 
out  of  the  cellar,  and  letting  them  down 
into  the  street;  when  he  informed  the 

[484] 


plaintiff  that  a  rope  must  be  made  on 
purpose.  The  defendant  did  not  make 
the  rope  himself,  but  sent  the  order  to 
his  manufacturer,  who  employed  a  third 
person  to  make  it.  It  was  held  that,  as 
between  the  parties  to  the  sale,  the  de- 
fendant was  to  be  considered  as  the 
manufacturer,  and  that  there  was  an 
implied  warranty  that  the  rope  was  a 
fit  and  proper  one  for  the  purpose  for 
which  it  was  ordered.  Tindal,  C.  J., 
said  : — "It  appears  to  me  to  be  a  dis- 
tinction well  founded,  both  in  reason 
and  on  authority,  that  if  a  party  pur- 
chases an  article  upon  his  own  judgment, 
he  cannot  afterwards  hold  the  vendor 
responsible,  on  the  ground  that  the  arti- 
cle turns  out  to  be  unfit  for  the  purpose 
for  which  it  was  required  ;  but  if  he  re- 
lies upon  the  judgment  of  the  seller,  and 
informs  him  of  the  use  to  which  the 
article  is  to  be  applied,  it  seems  to  me 
the  transaction  carries  with  it  an  im- 
plied warranty,  that  the  thing  furnished 
shall  be  fit  and  proper  for  the  purpose 
for  which  it  was  designed."  In  Shep- 
herd V.  Pybus,  3  M.  &  Gr.  868,  it  was 
held  that  in  a  sale  of  a  barge  by  the 
builder,  there  was  an  implied  warranty 
that  it  was  reasonably  Jit  for  use,  but  it 
was  left  undetermined  whether  there 
■was  an  implied  warranty  that  the  barge 
■was  fit  for  some  particular  purpose,  for 
which  the  builder  knew  it  was  designed 
by  the  purchaser.  See,  also,  Chambers 
V.  Crawford,  Addison,  150,  that  a  boat- 
builder,  constructing  a  boat,  is  held  to 
warrant  it  sufficient  for  ordinary  use. — 
In  Ollivant  i'.  Bayley,  5  Q.  B.  288, 
the  plaintiff  was  patentee  and  manufac- 
turer of  a  patent  machine  for  printing 
in  two  colors.  The  defendant  saw  the 
machine  on  the  plaintifi''s  premises,  and 
ordered  one,  the  plaintiff  undertaking 
by  a  written  memorandum  to  make  him 
"a  two  color  printing  machine  on  my 
patent  principle."  In  an  action  for  the 
price,  the  defendant  excused  himself  from 
liability  on  the  ground  that  the  machine 
had  been  found  useless  for  printing  in 
two  cojprs.  The  judge,  in  summing  up, 
told  the  jury  that,  if  the  machine  de- 
scribed was  a  known,  ascertained  arti- 
cle, ordered  by  the  defendant,  he  was 
liable,  whether  it  answered  his  purpose 
or  not ;  but  that  if  it  was  not  a  known, 


CH.   v.] 


WARRANTY. 


470 


purpose,  and  not  applied  to  those  where  a  special  thing  is 
ordered,  although  this  be  intended  for  a  special  purpose. 
For  if  the  thing  is  itself  specifically  selected  and  ordered, 
there  the  purchaser  takes  upon  himself  the  risk  of  its  effect- 
ing its  purpose.  But  where  he  orders  a  thing  for  a  special 
purpose,  or  to  do  a  specific  work,  there  he  puts  this  risk  upon 
the  person  who  is  to  supply  the  thing,  (lo) 


ascertained  article,  and  the  defendant 
had  merely  ordered,  and  the  plaintiff 
agreed  to  supply,  a  machine  for  print- 
ing two  colors,  the  defendant  was  not 
liable  unless  the  instrument  was  reason- 
ably fit  for  the  purpose.  The  Court  of 
Queen's  Bench  held  this  to  be  a  proper 
direction;  and,  the  jury  having  found 
for  the  plaintiff  under  it,  they  refused  to 
disturb  the  verdict.  See,  also,  the  next 
note.  In  Barnett  v.  Stanton,  2  Ala. 
195,  it  was  determined  that  if  manufac- 
tured goods  are  open  to  inspection,  and 
are  actually  examined  by  the  purchaser, 
before  the  sale,  there  is  no  implied  war- 
ranty of  quality,  although  the  manufac- 
turer himself  be  the  vendor.  See  Kirk  v. 
Nice,  2  Watts,  367,  that  a  manufactur- 
er even  does  not  always  undertake  that 
the  goods  made  are  merchantable.  The 
principle  of  the  text,  and  the  distinction 
between  a  sale  of  a  manufactured  arti- 
cle by  the  manufacturer  himself,  and  of 
an  ordinary  sale  of  a  chattel,  as.  to  im- 
plied warranty,  is  recognized  in  Misuer 
V.  Granger,  4  Oilman,  69 ;  and  in  Le- 
flore V.  justice,  1  S.  &  M.  .381,  where  it 
is  said  that  every  person  who  contracts 
to  do  a  piece  of  work,  impliedly  under- 
takes to  apply  suffici'.^nt  skill  and  dex- 
terity to  its  performance  to  complete  it 
in  a  just  and  workmanlike  manner.  So 
in  Howard  v.  Hoey,  23  Wend.  351,  the 
distinction  between  manufactured  arti- 
cles and  others  is  recognized.  See,  also. 
Hart  V.  Wright,  1 7  Wend.  267, 1 8  Id.  449. 
(tv)  "  If  a  man  says  to  another,  '  Sell 
me  a  horse  fit  to  carry  me,'  and  the 
other  sells  a  horse  which  he  knows  to 
be  unfit  to  ride,  he  may  he  liable  for 
the  consequences ;  but  if  a  man  says, 
'  Sell  me  that  gray  horse  to  ride,'  and 
the  other  sells  it,  knowing  that  the  for- 
mer will  not  be  able  to  ride  it,  that 
would  not  make  him  liable."  Matde, 
J;  in  Kcatcs  v.  Cadogan,  2  E.  L. 
&  E.  R.  320.  See  also  Chanter  v. 
Hopkins,  4  M.  &  W.  399,  whicli  fully 
establishes  the  distinction  taken  in  the 

41* 


text,  and  is  a  leading  case  on  the  sub- 
ject. There  the  defendant  sent  to  the 
plaintiff,  the  patentee  of  an  invention, 
known  as  "  Chanter's  smoke-consuming 
furnace,"  the  following  written  order :  — 
"  Send  me  your  patent  hopper  and  ap- 
paratus, to  fit  up  my  brewing  copper 
with  your  smoke-consuming  furnace. 
Patent  right,  £15  15s.;  ironwork  not 
to  exceed  £5  5s. ;  engineer's  time  fix- 
ing, 7s.  6d.  per  day."  The  plaintiff 
accordingly  put  up  on  the  defendant's 
premises  one  of  his  patent  furnaces,  but 
it  was  found  not  to  be  of  any  use  for 
the  purposes  of  brewery,  and  was  re- 
turned to  the  plaintiff.  It  was  held,  (no 
fraud  being  imputed  to  the  plaintiflf,) 
that  there  was  not  an  implied  warranty 
on  his  part  that  the  furnace  supplied 
should  be  fit  for  the  purposes  of  brew- 
ery ;  but  that,  the  defendant  having  de- 
fined by  the  order  the  particular  ma- 
chine to  be  supplied,  the  plaintift"  per- 
formed his  part  of  the  contract  by  sup- 
plying that  machine,  and  was  entitled 
to  recover  the  whole  .£15  15s.,  the  price 
of  the  patent  right.  Bluett  v.  Osborne, 
1  Stark.  384,  supports  this  distinction. 
In  that  case  the  plaintiff  sold  the  de- 
fendant a  bowsprit.  It  appeared  at  the 
time  to  be  in  every  respect  good  and 
perfect.  The  defendant  had  ample  op- 
portunity to  inspect  it.  Soon  after,  the 
bowsprit  was  cut  up  and  found  to  be 
rotten.  The  defendant  resisted  pa}- 
ment,  on  the  ground  that  there  was  an 
implied  warranty  by  the  vendor  that  the 
article  should  be  made  of  good  and 
sufficient  materials.  No  fraud  was  at- 
tributed to  the  vendor.  The  defence 
was  not  sustained,  and  the  plaintiff  had 
a  verdict  for  the  whole  price.  Here 
there  was  a  sale  of  a  specijic  chattel  — 
intended,  it  is  true,  for  a  particular 
purpose  by  the  purchaser,  but  not  fur- 
nished or  made  for  that  purpose  by  tlie 
vendor.  See  also  Gray  v.  Cox,  4  B.  & 
C.  108;  Dickson  v.  Jordan,  H  Ired. 
166;  Burns  v.  Fletcher,  2  Cart.  (Ind.) 

[485J 


471 


THE   LAW   OF   CONTRACTS. 


[book  III. 


But  whatever  may  be  the  law  as  to  an  implied  warranty 
that  personal*  property  bought  and  sold,  or  ordered  and 
manufactured  for  a  particular  purpose,  shall  be  reasonably 
fit  for  such  a  purpose, —  no  such  rule  applies  to  real  estate. 
It  seems,  indeed,  to  be  quite  well  settled,  that  in  a  lease  or 
purchase  of  a  house  and  land,  there  is  no  implied  warranty 
that  it  shall  be  reasonably  fit  for  habitation,  occupation,  or 
cultivation  ;  still  less  that  it  shall  be  fit  for  the  purpose  for 
which  it  was  taken,  (x) 


372.  —  It  has  been  very  generally  sup- 
posed that  in  all  sales  of  provisions 
there  is  an  implied  warranty  that  they 
are  wholesome.  But  it  seems  now  to 
be  well  settled  that  such  implied  war- 
ranty must  be  confined  to  those  cases 
where  provisions  are  sold  for  imme- 
diate domestic  use.  Moses  v.  Mead,  1 
Denio,  378.  And  it  seems  not  to  mat- 
ter that  they  are  purchased  for  domes- 
tic use,  unless  they  were  exposed  to  sale 
for  that  purpose,  or  the  seller  was  a 
■provision  dealer.  Burnby  v.  Bollett,  16 
M.  &  W.  644.  In  this  case  A.,  a  farm- 
er, bought,  in  the  public  market  of  a 
country  town,  from  B.,  a  butcher  keep- 
ing a  stall  there,  the  carcase  of  a  dead 
pig  for  consumption,  and  left  it  hang- 
ing up,  intending  to  return  after  com- 
pleting other  business  and  take  it  away. 
In  his  absence,  C,  a  farmer,  seeing  it 
and  wishing  to  buy,  was  referred  to 
A.  as  the  ownier,  and  subsequently,  on 
the  same  day,  bought  it  of  A.,  the  ori- 
ginal buyer,  without  any  warranty.  It 
did  not  appear  that  anj-  secret  defect  in 
it  was  known  to  any  of  the  parties.  It 
turned  out  to  be  unsound,  and  unfit  for 
human  consumption.  It  was  held  that 
no  warranty  of  soundness  was  implied 
by  law  between  the  fiirmers  A.  and  C. 
See  also  Van  Bracklin  v.  Fonda,  12 
Johns.  468 ;  Emerson  v.  Brigham,  10 
Mass.  197;  Hart  r.  Wright,  17  Wend. 
267,  18  Id.  449;  Winsor  v.  Lombard, 
18  Pick.  57  ;  Humphreys  r.  Comline,  8 
Blackf.  508.  —  If  an  innkeeper  agree 
with  a  brewer  to  take  all  his  beer  of 
him,  he  is  bound  to  furnish  him  with 
beer  of  a  wholesome  quality-  Hol- 
combe  v.  Hewson,  2  Camp.  391  ;  Coo- 
per V.  Twibill,  3  Camp.  286. 

[x]  Hart  V.  Windsor,  12  M.  &  W. 
68  ;  Sutton  t'.  Temple,  12  M.  &  W.  52, 
where  the  subject  is  very  ably  ex- 
amined   and    discussed.     In    the    last 

[486] 


case,  A.  hired  in  writing  the  eatage  of 
twenty-four  acres  of  land  from  B.  for 
seven  months  at  a  rent  of  £40,  and 
stocked  the  lands  with  beasts,  several  of 
which  died  a  few  days  afterwards,  from 
the  effect  of  a  poisonous  substance 
which  had  been  accidentally  spread 
over  the  land  without  B.'s  knowledge. 
Held  that  A.  could  not  abandon  the 
land  for  breach  of  an  implied  contract 
in  B.,  but  continued  liable  for  the  whole 
rent.  These  decisions  may  be  in  con- 
flict with,  and  if  so,  doubtless  overrule, 
the  case  of  Smith  v.  Marrable,  II  M.  & 
W.  5,  where  it  was  held  that  in  a  lease 
of  a  house  and  furniture  for  a  tempo- 
rary residence  at  a  watering  place,  and 
where  the  furniture  formed  the  greater 


Ha  c 
vsma 


tract,  there  was  an  implied  wa!»anty 
that  the  house  and  furniture  should  be 
fit  for  the  purpose  for  which  it  was 
hired  ;  and  Lord  Abinger,  in  Sutton  v. 
Temple,  attempted  to  distinguish  the 
two  cases.  The  other  judges,  however, 
were  inclined  to  think,  both  in  Sutton  v. 
Temple,  and  Hart  v.  Windsor,  that 
Smith  V.  Marrable  could  not  be  sup- 
ported. And  the  same  may  be  said  of 
Edwards  v.  Etherington,  Ey.  &  M.  268. 
7  D.  &  R.  117;  Collins  v.  Barrow,  1 
M.  &  Eob.  112  ;  Salisbury  v.  Marshal, 
4  C.  &  P.  65.  The  doctrine  of  the  text 
is  sustained  also  in  two  recent  cases  in 
Massachusetts.  Thus,  in  Button  v. 
Gerrish,  4  Law  Eeporter.  N.  S.  516,  the 
defendant  being  the  owner  of  a  store, 
in  April,  1849,  leased  the  same  to  the 
plaintiffs,  who  filled  it  with  dry  goods. 
In  June,  1849,  the  roof  and  walls  of 
the  store  fell  in,  and  buried  the  plain- 
tiff's goods  in  the  ruins ;  and  to  recover 
the  price  of  these  goods  the  plaintififs 
brought  theu'  action.  The  lease  of  the 
plaintiffs  contained  no  express  war- 
ranty that  the  building  was  fit  for  a  dry 


CH.  v.] 


WARRANTY. 


472 


No  warranty  can  be  implied  from  circumstances,  if  there 
be  an  express  refusal  to  warrant,  (y)  And  where  the  con- 
tract of  sale  is  in  writing,  and  contains  no  warranty,  there 
parol  evidence  is  not  admissible  to  add  a  warranty,  (z)  And 
*if  there  be  a  warranty  in  writing,  it  cannot  be  enlarged  or 
varied  by  parol  evidence,  (a)  But  although  there  be  a 
writing  between  the  parties?,  if  it  does  not  amount  to  a  con- 
tract of  sale,  as  if  it  be  an  ordinary  bill  of  sale,  merely  intended 
as  an  acknowledgment  of  the  receipt  of  the  price,  then  it 
seems  that  parol  evidence  is  admissible  to  show  the  actual 
terms  of  the  sale,  and  that  there  was  a  warranty,  (aa) 


goods  warehouse,  or  for  any  other  pur- 
pose. The  plaintiffs  disclaimed  any 
imputation  of  fraud  or  misrepresenta- 
tion on  the  part  of  the  defendant.  The 
court  held  that  as  the  lease  contained  no 
express  warranty,  the  plaintiffs  could 
not  recover,  there  being  no  warranty 
implied  in  law  on  the  part  of  the  lessor 
of  real  estate,  that  it  is  fit  or  suitable 
for  the  purposes  for  which  it  is  leased 
or  occupied.  They  also  held  that  deci- 
sions in  reference  to  leases  of  furnished 
lodgings,  and  to  warranties  implied 
upon  the  sale  of  goods,  were  not  appli- 
cable to  this  case.  The  same  doctrine 
is  held  in  Foster  v.  Peyser,  5  Law  Re- 
portei**,  N  S.  1.5.5,  Sec,  also,  the  learned 
note  to  this  last  case,  where  the  authori- 
ties on  this  point  are  reviewed.  See, 
also,  ante,  p.  422,  n.  (y.) 

{>/)  Rodrigues  v.  Habersham,  1 
Spears,  314.  See  also  By  water  ?;.  Rich- 
ardson, 1  Ad.  &  El.  508;  Atkins  v. 
Howe,  18  Pick.  16. 

(z)  This  was  distinctly  adjudged  in 
Van  Ostrand  v.  Reed,  1  Wend.  424, 
It  rests  upon  the  familiar  principle 
that  the  writing  is  supposed  to  contain 
all  the  contract.  Reed  v.  Wood,  9 
Verm.  285;  Mumford  v.  McPherson, 
1  Johns.  414  ;  Wilson  v.  Marsh,  1  Johns. 
503;  Lamb  v.  Crafts,  12  Met.  353; 
Dean  v.  Mason,  4  Conn.  432  ;  Randall 
V.  Rhodes,  1  Curtis.  90. 

(a)  Kain  v.  Old,  2  B.  &  C.  6.34; 
Pickering  v.  Dowson,  4  Taunt.  779 ; 
Pender  v.  Fobes,  1  Dev.  &  Batt.  250 ; 
Smith  V.  Williams,  1  Murph.  426.— 
So,  an  expi-ess  warranty  will  not  be 
extended  by  implication  from  other 
parts  of  the  contract  in  which  it  oc- 
curs. Dickson  v.  Zizinia,  2  IC.  L.  &  E. 
314.     In  this  case  the  declaration  stated 


that  the  defendants  sold  to  the  plaintiff 
a  cargo  of  corn  then  shipped  at  Orfano 
on  board  the  0.,  at  a  certain  price,  in- 
cluding freight  to  Cork,  Liverpool,  or 
London ;  that  it  was  agreed  that  the 
quality  should  be  of  a  certain  average, 
and  that  the  corn  had  been  shipped  on 
board  in  good  and  merchantable  con- 
dition. Breach,  that  it  was  not  shipped 
in  good  and  merchantable  condition  for 
the  performance  of  the  said  voyage. 
Held,  that  it  was  a  misdirection  to  ask 
the  jury  whether  the  corn  was  good  and 
merchantable  for  a  foreign  voyage. 
And  Maule,  J.,  said: — "It  would  be 
most  mischievous  to  superadd  a  tacit 
condition  relating  to  a  circumstance 
provided  for  by  the  express  words  of 
the  parties.  If  a  man  sold  a  horse  and 
warranted  it  sound,  and  the  vendor 
knew  that  it  was  intended  to  carry  a 
lady,  and  the  horse  was  sound,  but  was 
not  fit  to  carry  a  lady,  there  would  be 
no  breach.  So,  with  respect  to  any 
other  warranty,  the  maxim  to  be  applied 
is,  '  expressuni  facit  cessare  taciturn.' 
Were  the  law  otherwise,  it  would  very 
much  infringe  on  the  liberty  of  parties 
making  contracts.  It  would  in  such 
case  be  necessary  to  express  that  it  is 
not  intended  to  go  beyond  the  language 
employed." 

(art)  Allen  v.  Pink,  4  M.  &  W.  140; 
Hersom  v.  Henderson,  1  Foster,  224 ; 
Hogins  V.  Plympton,  11  Pick.  97  ;  Brad- 
ford V.  Manly,  13  Mass.  142.  So,  parol 
proof  is  admissible  to  show  a  usage  of 
trade  as  to  the  mode  of  making  sales, 
the  written  memorandum  and  bought 
and  sold  note  being  silent  u]ion  the 
subject.  Boorraan  y.  Jenkins,  12  Wend. 
567.  And  to  prove  that  the  vendor  in- 
formed the  vendee  at  the  time  of  sale  of 

[487] 


473* 


THE  LAW   OF   CONTRACTS. 


BOOK  III. 


Ships  often  are,  and  any  property  may  be,  sold  "  with  all 
faults."  This  is  an  emphatic  exclusion  of  all  warranty. 
But  it  gives  the  seller  no  right  to  commit  a  fraud,  nor  will  it 
prevent  the  sale  from  being  avoided  on  proof  of  fraud.  And 
it  is  fraud  if  the  seller  conceals  existing  faults,  and  draws 
the  attention  of  the  buyer  away  so  as  to  prevent  his  disco- 
vering them,  or  places  the  propertj'^  in  such  circumstances 
that  discovery  is  impossible,  or  made  very  difficult,  (b) 

*  There  has  been  much  question  as  to  what  is  a  breach  of 
the  warranty  of  soundness  ;  and  what  are  the  rights  and 
remedies  of  a  party  who  bought  with  warranty,  which  war- 
ranty has  been  broken.  For  an  answer  to  the  first  question  we 
will  refer  to  the  definitions  and  illustrations  in  our  notes,  (c) 


the  defect  complained  of.     Schuyler  v. 
Russ,  2  Caines,  202. 

(6)  Baglehole  v.  Walters,  3  Camp. 
154,  is  a  leading  case  on  this  subject. 
It  was  there  held,  that  if  a  ship  is  sold 
"  with  all  faults,"  the  seller  i&  not  liable 
for  latent  defects,  which  he  knew  of,  but 
did  not  disclose  at  the  time  of  sale,  un- 
less he  used  some  artifice  to  conceal  them 
from  the  purchaser.  The  case  of  Mellish 
V.  Motteau,  Peake,  1 1 5,  where  a  con- 
trary rule  was  adopted  by  Lord  Kenyan, 
was  cited,  but  Lord  Ellenborough  said :  — 
"  I  cannot  subscribe  to  the  doctrine  of 
that  case."  See  also  Pickering  v.  Uow- 
son,  4  Taunt.  785.  The  doctrine  of  the 
text  was  laid  down  by  Mansfield,  C.  J., 
in  Schneider  v.  Heath,  3  Camp.  508. 
A  ship  was  sold,  "  to  be  taken  with  all 
faults."  Her  bottom  was  worm-eaten, 
and  her  keel  broken.  When  the  ship 
was  advertised  for  sale,  the  captain  took 
her  from  the  ways  and  kept  her  con- 
stantly afloat,  so  that  these  defects 
were  completely  concealed  by  the  wa- 
ter. This  was  held  to  be  a  fraud  upon 
the  purchaser,  and  the  sale  was  avoided. 
A  similar  principle  was  applied  in 
Fletcher  v.  Bowshcr,  2  Stark.  561, 
where  a  vendor  of  a  ship  represented 
her  to  have  been  built  in  1816,  when 
she  had  in  fact  been  launched  the  year 
before.  She  was  sold  "  with  all  faults, 
as  they  now  are,  without  any  allowance 
for  any  defect  whatsoever."  The  sale 
was  held  void.  But  in  all  these  cases 
actual  fraud  in  tlie  vendor  must  be 
proved  in  order  to  render  him  liable. 
Sec  Freeman  f.  Baker,  5  B.  &  Ad.  797  ; 
Early  v.  Garrett,  9  B.  &   C.   928.    As 

[488] 


to  the  construction  of  contracts  of  the 
kind  mentioned  in  the  text,  see  Free- 
man V.  Baker,  S!/;)ra ,-  Shepherd  v.  Kain. 
5  B.  &  Aid.  240 ;  Taylor  v.  Bullen,  1 
E.  L.  &  E.  472. 

(c)  The  question  has  been  often 
raised,  what  is  soundness  or  unsound- 
ness in  a  horse  or  other  animal,  sold 
with  a  warranty  of  soundness.  The 
subject  was  ably  examined  in  Kiddell 
V.  Burnard,  9  M.  &  W.  668.  Parke,  B., 
there  said  :  —  "  The  rule  as  to  unsound- 
ness is,  that  if  at  the  time  of  sale  the 
animal  has  any  disease,  which  either 
actually  does  diminish  the  natural  use- 
fulness of  the  animal,  so  as  to  make 
him  less  capable  of  work  of  any  descrip- 
tion, or  which,  in  its  ordinary  progress, 
will  diminish  the  usefulness  of  the 
animal ;  or  if  he  has,  either  from  dis- 
ease or  accident,  undergone  any  altera- 
tion of  structure,  that  either  actually 
docs  at  the  time,  or  in  its  ordinary 
effect  will  diminish  his  natural  useful- 
ness, such  animal  is  unsound."  See 
also  Coates  v.  Stephens,  2  M.  &  Rob. 
157;  Elton  v.  Jordan,  1  Stark.  127; 
Elton  V.  Brogden,  4  Camp.  281.  So  if 
a  horse  has  at  the  time  of  sale  the  seeds 
of  disease,  which  in  its  ordinary  pro- 
gress will  diminish  his  natural  useful- 
ness, this  is  unsoundness.  Kiddell  v. 
Burnard,  9  M.  &  W.  668.  But  a  tem- 
porary and  curable  injury,  although  ex- 
isting at  the  time  of  sale,  if  it  does  not 
injure  the  animal  for  present  service,  is 
not  an  imsoundness.  Roberts  v.  Jen- 
kins, 1  Foster,  116.  It  seems  to  be  im- 
material whether  the  injury  be  perma- 
nent or  temporary,  curable  or  incura- 


CH.  v.] 


WARRANTY. 


'474 


On  the  second  point,  it  may  be  gathered  from  the  somewhat 
conflicting  authorities,  first,  that  the  buyer  may  bring  his 
action  at  once,  founding  it  upon  the  breach  of  warranty, 
without  returning  the  goods ;  but  his  continued  possession 
*of  the  goods  and  their  actual  value  would  be  considered  in 
estimating  the  damages,  (d)  Secondly,  he  may  return  the 
goods  forthwith,  and  if  he  does  so  without  unreasonable  de- 


ble,  if  it  render  the  animal  less  fit  for 
present  usefulness  and  convenience.  Ro- 
berts V.  Jenkins,  siipra ;  Elton  v.  Brog- 
den,  4  Camp.  281  ;  Elton  v.  Jordan,  1 
Stark.  127  ;  Kornegay  v.  White,  10 
Ala.  225.  IJut  see  Garment  v.  Barrs, 
2  Esp.  673.  Roaring  has  been  held  to 
be  an  unsoundness.  Onslow  v.  Eames, 
2  Stark.  81 ;  contra,  Bassett  v.  Collis,  2 
Camp.  523.  But  "  crib-biting  "  has  been 
held  not  to  be  an  unsoundness.  Broen- 
nenburgh  v.  Haycock,  Holt,  N.  P.  680. 
If  not  an  unsoundness,  it  is  a  "  vice," 
and  if  a  horse  is  warranted  free  from 
vice,  it  is  a  breach  of  the  warranty. 
Paul  V.  Hardwick,  Chitty  on  Cont.  403, 
n.  (r.)  A  "bone-spavin"  is  an  unsound- 
ness. Watson  V.  Denton,  7  C.  &  P.  85. 
A  nerved  horse  is  unsound.  Best  v.  Os- 
borne, Ry.  &  M.  290.  But  a  defective 
formation,  or  badness  of  shape,  which 
has  not  produced  lameness  at  the  time 
of  sale,  although  it  may  render  the 
horse  liable  to  become  lame  at  some 
future  time,  (e.  g.  "  curby  hocks,")  is 
not  an  unsoundness.  Brown  i:  Elking- 
ton,  8  M.  &  W.  132.  See  also  Dickin- 
son V.  FoUett,  1  M.  &  R.  299.  The 
"navicular  disease"  is  an  unsoundness. 
Matthews  v.  Parker,  Oliphant's  Law  of 
Horses,  228.  So  of  ■'  thickwind."  Al- 
kinson  v.  Horridge,  Id.  229.  "  Ossifi- 
cation of  the  cartilages."  Simpson  v. 
Potts,  224.  The  question  of  soundness 
or  unsoundness  is  particularly  for  the 
jury ;  and  the  court  will  not  set  aside 
a  verdict  on  account  of  a  preponderance 
of  the  testimony  the  other  way.  Lewis 
j;.  Peake,  7  Taunt.  153. 

(d)  Fielder  v.  Starkin,  1  H.  Bl.  17,  a 
leading  case  upon  this  point.  A  neg- 
lect to  inform  the  vendor  of  the  disco- 
vered breach  of  the  warranty  for  several 
months  after  the  sale,  will  not  bar  the 
purchaser's  right  to  an  action  for  breach 
of  warrantv.  Patesliall  v.  Tranter,  3 
Ad.  &  El.  "103.  Rutter  v.  Blake,  2  11. 
&  Johns.  353,  is  a  strong  American 
case,  that  an  action  may  be  maintained 


for  breach  of  warranty  without  return- 
ing the  goods,  but  it  was  here  held  that 
the  purchaser  ought  to  give  the  vendor 
notice  where  the  goods  were  deposited. 
In  Kellogg  u.  Denslow,  14  Conn.  411, 
where  the  authorities  are  very  elabo- 
rately and  critically  examined  by  Sher- 
man, J.,  the  rule  of  the  text  is  adopted. 
There  A.  agreed  to  furnish  B.  with  sun- 
dry articles  of  machinery,  to  be  deliver- 
ed subsequently,  and  to  be  free  from 
defect.  A.  delivered  the  articles  accord- 
ingly, which  were  received  and  used  by 
B.  for  nearly  a  year,  without  notice  to 

A.  of  any  defects  therein.  In  an  action 
brought  by  B.  against  A.  on  the  war- 
ranty, claiming  damages  for  defects  in 
the  articles  at  the  time  of  delivery,  it 
was  held  that  the  effect  of  B.'s  not 
having  given  notice  of  such  defects  in 
a  reasonable  time,  was,  that  he  had 
thereby  affirmed  the  contract,  but  such 
omission  constituted  no  defence  to  the 
action,  which  assumed  the  subsistence 
of  the  contract.  See  also  Waring  v. 
Mason,  18  Wend.  425  ;  Thompson 
V.  Bolts,  8  Missouri,  710  ;  Borrckins  v. 
Bevau,  3  Rawle,  23  ;  Cozzins  v.  Whita- 
ker,  3  Stew.  &  Port.  322  ;  Carter  v. 
Stennel,  10  B.  Monroe,  250;  Parker 
v.  Pringle,  2  Strobhart,  242  ;  Milton  v. 
Rowland,  1 1  Ala.  732 ;  Ferguson  v. 
Oliver,  8  S.  &  M.  332.  The  weight  of 
modern  authority  is  decidedly  in  favor 
of  the  rule  of  the  text,  that  an  action 

.lies  for  breach  of  a  warranty,  express  or 
implied,  without  returning  the  property, 
or  giving  any  notice  of  the  defect-  In 
Hills  V.  Bannister,  8  Cow.  31,  A.  sold 

B.  a  bell,  warranting  it  not  to  crack 
within  a  year,  and  promising  to  recast 
it  if- it  did.  He  was  held  not  liable  on 
his  warranty,  without  notice,  and  neg- 
lect to  recast  it.  Of  course,  if  the  pur- 
chaser has  not  returned  the  goods,  their 
real  value  will  be  deducted  from  his 
damages  ;  the  difterencc  between  the 
price  paid,  or  to  be  paid,  and  the  real 
value,  being  the  measure  of  damages. 

t489] 


475*  THE  LAW   OP  CONTRACTS.  [BOOK  lU. 

lay,  this  will  be  a  rescinding  of  the  sale,  and  he  may  sue  for 
the  price  if  he  has  paid  it,  or  defend  against  an  action 
for  the  price,  if  one  be  brought  by  the  seller.  And  if  the 
vendor  refuses  to  receive  the  goods  back,  when  tendered,  the 
purchaser  may  sell  them  ;  and  if  he  sells  them  for  what  they 
are  reasonably  worth,  and  within  a  reasonable  time,  he  may 
recover  of  the  vendor  the  loss  upon  the  resale,  with  the  ex- 
pense of  keeping  the  goods  and  of  selling  them,  (dd)  We 
should  say,  on  the  reason  of  the  thing,  that  if  the  buyer  sells 
the  goods  with  all  proper  precautions  as  to  time,  place,  and 
manner,  to  ensure  a  fair  sale,  the  vendor  will  be  bound  by 
the  price  the  goods  bring,  whether  that  be  in  fact  equal  to 
their  value  or  not ;  but  this  may  not  yet  be  established  by 
adjudication.  If  he  has  a  right  to  return  the  goods,  his 
tender  of  them  completes  his  right  to  sue  for  the  price, 
whether  the  vendor  receives  them  or  not.  (e)  But  some 
authorities  of  great  weight  limit  his  right  to  return  the 
goods  for  breach  of  warranty  to  cases  of  fraud,  or  where 
there  was  an  express  agreement  to  that  effect  between  the 
parties.  (/) 

*In  general,  when  a  buyer  asserts  that  the  goods  he  pur- 
chased are  not  what  they  were  warranted  to  be,  or  are  so 
different  from  what  he  ordered,  or  from  the  seller's  repre- 
sentation of  them,  or  from  the  quality  and  value  such  articles 
should  possess,  as  to  give  him  a  right  to  rescind  and  avoid 
the  sale,  he  must  forthwith  return  the  goods  if  he  would  ex- 
ercise this  right.     Delay  in   doing  so,  or  any  act  equivalent 

Caswell  V.  Core,  1  Taunt.  566 ;    Ger-  Lightburn  v.  Cooper,  1  Dana,  273,    In 

maine  v.  Burton,  3  Stark.  32 ;  Gary  v.  the  United  States  Courts,  Thornton  v, 

Gruman,  4  Hill,  625  ;  Voorhees  V.  Earl,  Wynn,    12  Wheat.    183.     In   Pennsyl- 

2  Hill,  288  ;  Comstock  v.  Hutchinson,  vania,    Kase   v.   John,  10  Watts,    107. 

10  Barb.  211.                                               •  In   Tennessee,   Allen   v.   Anderson,    3 

(del)  Chesterman  v.  Lamb,  2  Ad.  &  Humph.   581.      It  has   been   said   this 

El.  129  ;  McKenzie  v.   Hancock,  Ry.  &  is  the  English  rule.     See  Street  v.  Blay, 

Mood.  436;  Maclean  r.  Dunn,  4  Bing.  2  B.  &Ad.  456;  Gompertz  v.  Denton, 

722,  Best,  C.  J. ;  Woodward  v.  Thacher,  1  Cr.  &  M.  207 ;  Parson  v.  Lexton,  4 

21  Verm.  580  ;  Buffington  v.   Quantin,  C.  B.  899 ;  OUivant  v.  Bayley,  5  Q.  B. 

17  Penn.  310.  288;  Dawson  v.  Collis,  4  Eng.  Law  & 

(e)    Washington,  J.,   in   Thornton  v.  Eq.  338.    And  in  an  action  brought  for 

Wynn,  12  Wheat.  193.  the  price  of  goods  sold  or  services  per- 

(/)  See  Carter  v.  Walker,  2  Richard-  formed,  the  defendant  may  reduce  the 

son,  40.     This  is  the  rule  in  New  York,  damages  by  showing  a  breach  of  war- 

Cary  v.  Gruman,  4  Hill,  625  ;  Voorhees  ranty  on  the  part  of  the  plaintiff.    Alien 

V.  Earl,   2   Hill,   288.      In    Kentucky,  v.  Hooker,  25  Verm.  137. 

[490] 


CH.  v.] 


WARRANTY. 


-475 


to  acceptance,  employment,  or  disposition  of  the  goods,  after 
he  knows  or  should  know  their  deficiency,  if  it  exists,  would 
be  construed  either  into  an  admission  that  there  was  no  such 
deficiency,  or  into  a  waiver  of  his  right  to  rescind  the  sale 
because  of  such  deficiency,  (g) 


(g)  Thus,  in  Milner  v.  Tucker,  1  C. 
&  P.  15,  a  person  contracted  to  supply 
a  chandelier,  sufficient  to  light  a  certain 
room.  The  purchaser  kept  the  chan- 
delier six  months,  and  then  returned  it ; 
he  was  held  liable  to  pay  for  it,  although 
it  was  not  according  to  the  contract. 
So  in  Cash  v.  Giles,  3  C.  &  P.  407,  a 
threshing  machine  was  kept  several 
years,  without  complaint,  but  only  used 
twice ;  the  vendee  was  held  liable  for 
the  price,  although  it  was  of  little  or  no 
value.  And  in  Percival  v.  Blake,  2  C. 
&  P.  514,  keeping  property  two  months 
without  objection  was  held  to  be  an  ac- 


ceptance, and  the  purchaser  was  bound 
to  pay  for  it,  there  being  no  fraud. 
See  Grimaldi  v.  White,  4  Esp.  95  ;  Gro- 
ning  V.  Mendham,  1  Starkie,  257 ;  Hop- 
kins V.  Appleby,  1  Starkie,  477  ;  Kel- 
logg V.  Denslow,  14  Conn.  411.  Keep- 
ing a  warranted  article  for  a  length  of 
time  without  objection,  and  selling  part, 
is  evidence  tending  to  prove  that  it  cor- 
responded with  the  warranty.  Prosser 
V.  Hooper,  1  Moore,  106.  But  the  delay 
must  take  place  after  the  discovery  of 
the  deficiency  in  the  goods.  Clements 
V.  Smith's  Administrators,  9  Gill,  156. 

[491] 


476  THE  LAW  OF  CONTRACTS.        [BOOK  III. 


CHAPTER  VI. 

STOPPAGE  IN  TRANSITU. 

If  a  vendor,  who  has  sent  goods  to  a  purchaser  at  a  dis- 
tance, finds  that  the  purchaser  is  insolvent,  he  may  stop  the 
goods  at  any  time  before  they  reach  the  purchaser.  This 
right  is  called  the  right  of  stoppage  in  transitu. 

This  right  exists,  strictly  speaking,  only  when  the  vendor 
has  parted  with  the  goods.  If  they  have  never  left  his  pos- 
session, he  has  a  lien  on  them  for  the  full  payment  of  their 
price ;  but  not  this  right  of  stoppage.  (A) 

Insolvency  is  necessary  to  create  this  right ;  but  it  is  not 
perfectly  well  settled  what  constitutes,  for  this  purpose,  in- 
solvency. It  would  seem,  however,  that  it  should  be  not 
merely  a  general  inability  to  pay  one's  debts  ;  but  the  having 
taken  the  benefit  of  an  insolvent  law,  or  a  stoppage  of  pay- 
ment, or  a  failure  evinced  by  some  overt  act.  {()     Or,  as  it 

(h)  Parks  v.  Hall,  2  Pick.  212.    As  circumstances,  as  evinced  by  some  overt 

to  the  difference  between  these  rights,  act.  That  a  technical  insolvency  is  suffi- 

see  McEwan   v.   Smith,   2    House   of  cient  to  authorize  the  exercise  of  the  right 

Lords  Cases,  309.     See  also  Gibson  v.  of  stoppage  in  transitu  has  always  been 

Carruthers,  8  M.  &  W.  321 ;  Jones  v.  conceded.     That  it  is  not  indispensable 

Bradner,  10  Barb.  193.  for  that  purpose  is  equally  clear.    Mr. 

(i)  In  Rogers  v.  Thomas,  20  Conn.  Smith,  in  his  Compendium  of  Mercantile 
54,  Starrs,  J.,  on  the  meaning  of  the  Law,  p.  549,  n.,  expresses  his  belief  that 
phrase  insolvency,  said  :  —  "  The  cases  merchants  have  very  generally  acted  as 
on  this  subject  generally  mention  insol-  if  the  right  to  stop  goods  was  not  post- 
vency  as  one  of  the  conditions  on  which  poned  till  the  occurrence  of  insolvency 
the  right  of  stoppage  in  transitu  ac-  in  the  technical  sense,  and  pertinently 
crues ;  but  they  are  wholly  silent  as  to  adds  :  —  '  The  law  of  stoppage  in  tran- 
what  constitutes  such  insolvency;  and  situ  is  as  old,  it  must  be  recollected,  as 
therefore  its  sense,  as  thus  used,  is  to  be  1670,  on  the  21st  of  March,  in  which 
gathered  from  the  circumstances  of  the  year  Wiseman  v.  Vandeput  was  de- 
cases.  For  it  is  a  term  which  is  used  cided ;  so  that  if  jViso/i-enq/ is  to  be  taken 
•with  various  meanings.  In  a  technical  in  a  technical  sense,  the  law  of  stoppage 
sense  it  denotes  the  having  taken  the  in  transitu  has  been  varying  with  the 
benefit  of  an  insolvent  law  ;  in  the  pop-  varied  enactments  of  the  legislature 
ular  sense,  a  general  inability  to  pay  regarding  it.'  That  stoppage  of  pay- 
debts  ;  and  in  a  mercantile  sense,  a  ment  amounts  to  insolvency  for  this 
stoppage  of  payment,  or  failure  in  one's  purpose  is  assumed  in  many  of  the 

U92] 


CH.   VI.] 


STOPPAGE  IN  TRANSITU. 


4T7 


has  been  defined,  "  an  inability  to  pay  one's  debts  in  the  ordi- 
nary course  as  persons  generally  do."  [j) 

The  mere  insolvency  or  bankruptcy  of  the  vendee  will  not, 
per  se,  amount  to  a  stoppage  in  transitu;  for  there  must  be 
some  act  on  the  part  of  the  consignor,  indicative  of  his  inten- 
tion to  repossess  himself  of  the  goods,  (k)  But  if  it  was 
ever  considered  necessary  for  the  consignor,  or  some  one  in 
his  behalf,  to  take  actual  possession  of  the  goods,  in  order  to 
perfect  and  execute  his  right,  that  doctrine  is  now  exploded. 
Notice  of  the  consignor's  claim  and  purpose  given  to  the 
carrier  before  delivery  is  sufficient.  (/)     This  notice  and  de- 


cascs.  Lord  Ellenborough,  inNewsony. 
Thornton,  6  East,  17,  places  the  right 
of  the  vendor  to  stop  the  property  on 
the  '  insolvencji '  of  the  consignee,  ■where 
there  had  heen  only  a  stoppage  of  pay- 
ment by  the  vendee,  when  notice  was 
given  to  the  carrier,  by  the  vendor,  to 
retain  the  goods.  In  Vertue  v.  Jewell, 
4  Campb.  31,  the  terms  used  were, 
'  stopped  payment.'  See  also  Dixon  v. 
Yates,  5  B.  &  Ad.  313.  We  have  been 
able  to  find  no  case  in  which  the  right 
of  stoppage  in  transitu  has  been  cither 
sanctioned  or  attempted  to  be  justified 
on  the  ground  of  the  insolvency  of  the 
vendee,  where  there  M'as  not  a  techni- 
cal insolvency,  or  a  stoppage  of  pay- 
ment, or  failure  in  circumstances,  evi- 
denced by  some  overt  act ;  and  Mr. 
Blackburn,  in  his  Treatise  on  the  Con- 
tract of  Sale,  p.  130,  where  this  subject 
is  very  minutely  examined,  says,  that 
there  seems  to  have  been  no  such  case ; 
and  adds,  that  although  the  text-books 
and  dicta  of  the  judges  do  not  restrict 
the  use  of  the  term  '  insolvent,'  or 
'failed  in  his  circumstances,'  to  one 
who  has  stopped  payment,  there  must 
be  great  practical  difficulty  in  establish- 
ing the  actual  insolvency  of  one  who 
still  continues  to  pay  his  way ;  and  as 
•  the  carrier  obeys  the  stoppage  in  tran- 
situ at  his  peril,  if  the  consignee  be  in 
fact  solvent,  it  would  seem  no  unrea- 
sonable rule  to  require,  that  at  the  time 
the  consignee  was  refused  the  goods, 
he  should  have  evidenced  his  insolvency 
by  some  overt  act.  Mr.  Smith,  in  his 
work  which  has  been  mentioned,  clcai-ly 
favors  the  same  view.  Com  p.  Merc. 
Law,  130,  n.  Hence,  it  appears  that 
the  authorities  and  text-writers  furnish 


VOL.  I. 


42 


no  support  to  the  claim  that  a  mere 
general  inability  to  pay  debts,  unac- 
companied with  any  visible  change  in 
the  circumstances  of  the  debtor,  consti- 
tutes insolvency,  in  such  a  sense  as  to 
confer  the  right  of  stoppage  in  transitu." 
But  see  Hays  ;'.  Mouille,  14  Penn.  St. 
R.  51  ;  Biddlecombe  v.  Bond,  4  Ad.  & 
El.  332  ;  Navlor  v.  Denni.  8  Pick.  205  : 
Chandler  v.  Fulton,  10  Texas,  2. 

(j)  Thompson,  v.  Thompson,  4  Cash. 
134;  Shore  v.  Lucas,  3  D.  &  R.  218  ; 
Bavly  V.  Schofield.  1  M.  &  S.  338. 

(7c)  2  Kent's  Com.  543.  But  the 
right  exists  only  in  cases  of  insolvency 
of  the  vendee.  The  Constantia,  6  Rob. 
Adm.  321. 

(/)  Litt  r.  Cowlcv,  7  Taunt.  169; 
Hoist  V.  Pownal,  1  Esp.  240  ;  Newhall 
V.  Vargas,  13  Maine,  93.  Notice  should 
be  given,  it  seems,  to  the  carrier,  mid- 
dleman, or  other  person  having  at  the 
time  the  actual  custody  of  the  goods  ; 
or  given  to  such  a  person,  that  it  may 
reach  the  carrier  before  delivery.  Mot- 
tram  V.  Heycr,  5  Denio,  629.  But  in 
Bell  V.  Moss,  5  Whart.  189,  it  was 
given  to  the  assignees  of  the  consignee, 
who  had  become  insolvent,  and  was 
held  sufficient.  In  Northey  v.  Field, 
2  Esp.  G13,  the  demand  was  on  the  offi- 
cer of  the  custom-house,  where  the 
goods  were  stored.  Whitehead  v.  An- 
derson, 9  M.  &  W.  518,  is  an  important 
case  upon  this  point.  There  it  is  held 
that  a  notice  of  stopjiage  in  transitu,  to 
be  effectual,  must  be  given  either  to  the 
person  who  has  the  immediate  custody 
of  the  gcfods,  or  to  the  principal  whose 
servant  has  the  custody,  at  such  a  time, 
and  under  such  circumstances,  as  that 
he  may  by  the  exercise  of  reasonable 

[493] 


478 


THE   LAW   OF   CONTRACTS. 


[book   III. 


mand  on  behalf  of  the  consignor  need  not  be  made  by  any 
person  specially  authorized  for  that  purpose ;  it  may  be 
made  by  a  general  agent  of  the  consignor;  or  even  by  a 
stranger,  if  it  be  ratified  by  the  vendor  before  the  delivery  to 
the  vendee,  (m)  But  a  ratification  of  a  notice  and  demand 
by  an  unauthorized  person,  not  made  until  after  delivery  to 
the  vendee,  will  not  suffice,  (n) 

The  question  has  been  raised  v^^hen  the  insolvency  may  take 
place,  in  order  to  give  this  right ;  that  is,  whether  the  right 
exists  by  reason  of  an  insolvency  before  the  sale ;  and  it  was 
held  that  the  insolvency  must  take  place  between  the  time  of 
the  sale  and  that  of  the  exercise  of  the  right  of  stoppage,  (o) 


diligence  communicate  it  to  his  servant, 
in  time  to  prevent  the  dcUvcrj  to  the 
consignee.  Therefore,  where  timber 
was  sent  from  Quebec,  to  be  delivered 
at  Fort  Fleetwood  in  Lancashire,  a  no- 
tice of  stoppage  given  to  the  shipowner 
at  Montrose,  while  the  goods  were  on 
their  voyage,  whereupon  he  sent  a  let- 
ter to  await  the  arrival  of  the  captain 
at  Fleetwood,  directing  him  to  deliver 
the  cargo  to  the  agents  of  the  vendor  — 
was  held  not  to  be  a  sufficient  notice  of 
stoppage  in  transitu. 

(m)  Whitehead  v.  Anderson.  9  M.  & 
W.  518;  Bell  v.  Moss,  .5  Whart.  189; 
Newhall  v.  Vargas,  13  Maine,  93. 

(w)  Bird  I'.  Brown,  4  Exch.  R.  786. 

(o)  Rogers  v.  Thomas,  20  Conn.  .'33, 
a  very  able  case  on  this  point.  As  this 
question  seems  to  have  been  first  raised 
in  this  case,  we  give  the  language  of 
Storrs,  J.:  —  "The  remaining  inquiry 
I'espects  the  time  when  such  insolvency 
must  occur,  in  order  to  confer  this  right. 
On  this  point  we  are  of  opinion  that  it 
is  not  sufficient  it  exists  when  the  sale 
takes  place,  but  that  it  must  intervene 
between  the  sale  and  the  exercise  of 
such  right.  It  is  well  settled,  that  after 
the  sale,  and  before  the  vendor  has 
taken  any  steps  to  forward  the  property 
to  the  vendee,  the  former  has  a  lien 
upon  it,  by  virtue  of  which  he  may,  on 
the  occurrence  of  the  insolvency  of  the 
latter,  retain  the  goods  in  his  posses- 
sion, as  a  security  tor  the  price.  This 
is  a  strictly  analogous  right  to  that  of 
stopping  them  after  they  have  been  for- 
warded, and  while  they  arc  on  their 
■way  to  the  vendee,  and  depends  on  the 

r494] 


same  principles.  And  it  may  be  here 
remarked,  that  the  cases  decided  on  the 
subject  of  that  right  of  lien  confirm  the 
views  which  we  have  expressed  as  to 
the  meaning  of  insolvency  as  applied  to 
the  right  of  stoppage,  after  the  trayisitus 
has  commenced.  The  same  equitable 
principle  which  authorizes  a  retention 
of  the  possession  in  the  one  case,  and  a 
recovery  of  it  in  the  other,  would  seem 
to  authorize  the  latter,  where  the  insol- 
vency occurred  after  the  sale  and  before 
the  forwarding  of  the  property.  The 
right  of  stopping  it  after  the  transitus  has 
commenced  may  not,  therefore,  be  limit- 
ed, to  the  case  whei-e  insolvency  occurs 
after  it  has  left  the  possession  of  the 
vendor,  but  may  extend  to  cases  where 
it  occurred  at  any  time  after  the  sale. 
However  that  may  be,  we  are  clear  that 
it  must  occur  after  the  sale.  In  favor 
of  this  position  there  is  the  same  argu- 
ment, from  an  entire  absence  of  author- 
ity against  it,  as  was  derived  from  that 
source  on  the  point  which  we  have  just 
considered ;  and  it  applies  with  equal 
force.  Wc  find  no  decided  case  in 
which  the  right  in  question  has  been 
sanctioned,  excepting  where  the  insol- 
vency occurred  subsequent  to  the  sale. 
And  although  the  language  of  the  courts 
may  sometimes  seem  to  imjjort  that  the 
right  exists,  irrespective  of  the  time 
when  the  insolvency  took  place,  it  is 
quite  plain  that,  applying  their  expres- 
sions to  the  cases  they  were  consiiier- 
ing,  and  whicli  did  not  involve  this 
point,  they  were  not  intended  to  have 
that  construction.  But  in  most  of  the 
decided  cases  oa  this  subject  it  will  be 


CH.    VI.]  STOPPAGE   IN   TRANSITU.  .  479-*  480 

It  has  been  much  disputed,  and  may  not  yet  be  entirely 
settled,  whether  this  is  a  right  to  rescind  the  sale,  (p)  or  only 
an  extension  of  the  common-law  lien  of  the  seller,  (q)  The 
difference  is  important.  If  stoppage  in  transitu  rescinds  the 
sale,  the  vendor  thereby  takes  possession  of  the  goods  as  his 
ow^n,  and  has  no  claim  on  the  purchaser  for  the  price.  But 
if  it  be  only  the  exercise  of  a  right  of  lien,  then  the  property 
in  the  goods  remains  in  the  purchaser  or  those  who  represent 
him,  and  the  right  to  the  price  of  the  goods  remains  with  the 
vendor,  (r)  Therefore,  if  the  vendor  now  sells  them,  it  must 
be  as  any  one  may  sell  goods  on  which  he  has  a  lien  to  secure 
an  unpaid  debt ;  if  they  bring  more  thau  the  debt  he  must 
account  for  the  surplus ;  if  they  bring  less,  he  may  demand 
the  balance  from  the  purchaser.  (5) 

*  This  question  has  been  much  agitated  ;  but  we  think  the 
strongly  prevailing  authority  and  reason  are  in  favor  of  its 
being  an  exercise  of  a  lien  by  the  seller,  and  not  a  rescission 
of  the  sale.  Doubtless  there  are  difficulties  attendant  upon' 
either  view  of  this  question.  Thus,  it  may  be  said  that  a 
seller  cannot  retain  a  lien  who  has  parted  with  his  posses- 
seen  that  their  language  is  most  unc-  the  purposes  of  substantial  justice." 
quivocal,  and  in  terms  limits  the  right  And  it  seems  that  the  right  was  first 
of  stoppage  to  cases  of  bankruptcy  or  introduced  into  equity  before  it  was  ap- 
insolvency,  occurring  while  the  goods  plied  by  the  common-law  courts.  See 
are  in  transitu,  and  of  course  after  the  Wiseman  v.  Vandeput,  2  Vcrn.  203  ; 
sale."  Snee  v.  Prescot,  1  Atlc.  246  ;  D'Aquila 

(p)  This  question  was  much  dis-  v.  Lambert,  2  Eden,  75,  Ambl.  .399.  In 
cussed  in  Clay  v.  Harrison,  10  B.  &  C  the  following  cases  this  right  has  been 
99,  but,  according  to  a  dictum  of  Parke,  considered  not  a  rescission  of  the  sale, 
J.,  in  Stephens  v.  Wilkinson,  2  B.  &  but  merely  an  extension  of  the  lien. 
Ad.  323,  not  decided.  See  Wilmhurst  Wentworth  v.  Outhwaite,  10  M.  &  W. 
t'.  Bowker,  5  Bing.  N.  C.  547  ;  Edwards  436  ;  Bloxam  v.  Sanders,  4  B.  &  C.  941 ; 
V.  Brewer,  2  M.  &  W.  375.  The  old  Jordan  v.  James,  5  Ham.  88  ;  Kowley 
case  of  Langfort  v.  Tyler,  1  Salk.  113,  v.  Bigelow,  12  Pick.  307;  Newhall  v. 
permitting  the  A'cndoV  to  resell  the  Vargas,  13  Maine,  93,  15  Maine,  315 ; 
goods,  seems  to  proceed  upon  the  Rogers  v.  Thomas,  20  Conn.  53  ; 
ground  of  a  rescission  of  tlie  contract.  Gwynne,  Ex  parte,  12  Ves.  379  ;  Mar- 
The  history  and  character  of  this  right  tindale  i\  Smith,  1  Q.  B.  389 ;  Chandler 
was  much  discussed  in  Lord  Abinger's  v.  Fulton,  10  Tex.  2. 
judgment  in  Gibson  v.  Carruthers,  8  M.  (r)  There  wouki  seem  to  be  no  doubt 
"&  W.  336.  And  see  Wentworth  v.  that  the  vendor  may  sue  for  the  price 
Outhwaite,  10  M.  &  W.  451.  of  the  goods,  notwithstanding   he   has 

(7)  The  weight  of  authority,  as  well  stopped  them  in  transitu,  provided  he  is 
as  the  reason  of  the  thing,  is  "decidedly  ready  to  deliver  them  on  demand  and 
in  favor  of  considering  the  right  as  an  payment.  Kymer  v.  Suwercropp,  1 
extension  of  the  common-law  lien  for     Camp.  109. 

the  price,  or,  as  Lord  Kenyan  observed  (s)  This  was  distinctly  adjudged  in 
in  Hodgson  v.  Loy,  7  T.  R.  445,  "  an  Newhall  v.  Vargas,  15  Maine,  314,  a 
equitable  lien  adopted  by  the  law,  for    very  able  case  on  this  subject. 

[495] 


481*  THE   LAW   OF   CONTRACTS.  [BOOK   III. 

sion.  And  then  the  right  would  be  considered  rather  as  a 
quasi  lien  ;  or,  in  other  words,  the  right  of  stoppage  in  tran- 
situ is  measured  and  governed  as  to  its  effect  and  conse- 
quences, rather  by  the  rules  of  law  applicable  to  lien  than  by 
those  which  would  belong  to  a  rescission  of  the  sale.  Per- 
haps the  difference  of  opinion  on  this  subject  may  be  attri- 
buted in  some  degree  at  least  to  the  difference  in  the  circum- 
stances of  the  cases  in  which  the  question  has  arisen.  Thus, 
if  there  has  been  a  complete  sale  of  a  specific  chattel,  agree- 
ably to  a  specific  order  of  the  purchaser,  the  property  in  the 
chattel  would,  it  should  seem,  pass  thereby  to  the  purchaser, 
subject  only  to  the  exercise  of  the  seller's  lien  for  the  price. 
And,  in  such  a  case,  the  exercise  of  the  right  of  stoppage 
would  revest  in  the  seller  only  the  possession,  just  as  it  was 
when  he  sent  the  goods  away;  that  is,  subject  to  the  property 
in  the  purchaser,  and  only  for  the  purpose  of  restoring  and 
making  effectual  the  seller's  lien.  But,  on  the  other  hand,  if 
A.  should  send  to  B.  an  order  for  a  certain  quantity  of  goods 
of  a  certain  kind  or  description,  and  B.  should  procure  goods 
which  he  supposed  answerable  to  the  order,  and  send  them 
to  A.,  and  should  then  hear  of  the  failure  of  A.,  and  there- 
upon stop  the  goods  on  their  passage,  B.'s  rights  might 
become  the  same  as  if  he  had  never  sent  the  goods;  and  the 
property  would  remain  in  him,  because  they  had  never  been 
accepted  by  A.,  and  now  never  could  be.  (/)  Still,  however, 
we  think  there  is  a  strong  tendency  in  the  courts  both  of 
England  and  this  country,  to  treat  the  right  of  stoppage  in 
transitu  as  the  exercise  of  a  lien. 

In  some  respects  it  is  treated  as  an  absolute  lien,  and  on 
this  ground  denied  to  exist  at  all,  where  it  cannot  exist  as  a 
*  lien.  Thus  it  is  said  that  this  right  belongs  only  to  one  who 
sold  the  goods,  or  had  distinctly  the  property  in  them  ;  and 
not  to  one  who  has  himself  only  a  lien  on  them,  as  a  bailee 
who  has  a  lien  for  work  done,  or  the  like  ;  for  when  such  a 
party  sends  the  goods  away  from  him  he  parts  with  the  pos- 
session, and  his  own  lien  ceases,  (w) 

(t)  See  Clay  v.  Harrison,  10  B.  &  C.        (it)  Sweet  v.  Pym,  1  East,  4. 
99,    and  note  to  that  case  ;   James  v. 
Griffin,  2  M.  &  W.  623,  632,  Parke,  B. 

[496] 


CH.   VI.]  STOPPAGE  IN  TRANSITU.  *482 

It  is  indeed  quite  well  settled,  that  the  right  of  stoppage 
in  transitu  exists  only  between  vendor  and  vendee,  or  between 
persons  standing  substantially  in  that  relation.  A  mere 
surety  for  the  price,  upon  whom  there  is  no  primary  liability 
to  pay  for  the  goods,  cannot  stop  them  upon  the  insolvency 
of  the  vendee  merely  to  secure  himself  from  loss,  {v)  But 
if  the  consignor  is  virtuaUij  the  vendor,  he  may  exercise  the 
right.  Thus,  if  a  person  in  this  country  should  send  an  order 
to  his  correspondent  in  Paris  to  procure  and  ship  to  him  cer- 
tain goods,  which  the  latter  should  procure  on  his  own  credit^ 
without  naming  the  principal,  and  ship  to  him  at  the  ori- 
ginal price,  adding  only  his  commission,  he  would  be  con- 
sidered as  an  original  vendor,  so  far  at  least  as  to  give  him 
the  right  of  stoppage  in  transitu,  (iv)  if  not  for  all  purposes. 
So  a  principal  who  consigns  goods  to  his  factor  upon  credit 
may  stop  them  on  the  factor's  insolvency,  (x)  The  right  of 
stoppage  in  transitu  is  not  confined  to  a  sale  of  goods.  A 
person  remitting  money  on  a  particular  account,  or  for  a  par- 
ticular purpose  may  stop  the  same  on  hearing  of  the  insol- 
vency of  the  consignee,  (y)  The  fact  that  the  accounts 
between  the  consignor  and  consignee  are  unadjusted,  render- 
ing it  uncertain  whether  there  is,  or  will  be,  a  balance  due 
the  consignor,  will  not  prevent  the  consignor  from  exercising 
this  right,  (z)  But  goods  shipped  to  pay  a  precedent  and 
existing  debt  cannot  be  stopped  on  the  insolvency  of  the 
consignee,  (a)  A  consignor  may,  however,  *  exercise  this 
right,  although  he  has  received  a  bill  of  exchange  for  the 
goods  and  indorsed  it  over;  [b)  or  even  if  he  has  received 
actual  payment  for  a  part  of  the  goods,  (c) 

(v)  Siffkin  V.  "Wray,  6  East,  371.  Vargas,  13  IMaine,  93  ;  Bell  v.  Moss,  5 

(w)  Feise  v.  Wray,'  3  East,  93.  Whart.  189  ;  Feise  v.  Wray,  3  East,  93; 

(x)  Kinloch  v.  Craig,  3  T.  II.  119.  Jenkyns   v.   Usborne,  7  M.  &  G.  678, 

(.»/)  Smith  V.  Bowles,  2  Esp.  578.  698;  Donatli  v.  Broomhead,  7  Barr, 
Aliler  upon  a  general  remittance  from  a  301.  And  it  is  said  that  the  consignor 
debtor  to  his  creditor  on  account  of  his  need  not  tender  back  the  bill.  Ed- 
debt.                                              '  wards  v.  Brewer,  2  M.  &  W.  375  ;  Hays 

(z)  Wood  V.  Jones,  7  D.  &  R.  126  ;  v.  Mouille,  14  Penn.  St.  R.  48.     But  of 

Vertue  v.  Jewell,  4  Camp.  31.  this  we  should  have  some  doubts. 

(a)  Wood  V.  Roach,  1  Ycates,  177,  2  (c)  Hodgson  v.  Loy,  7  T.  R.  440; 

Dallas,  180;  Summeril  t-.  Elder,  1  Binn.  Newhall  v.   Vargas,   13  Maine,  93.— 

106  ;  Clark  v.  Mauran,  3  Paige,  373.  Qum-e,  whether  in  those  States  where 

[h)  And   this    is    true   although   the  a  negotiable  bill  or  note  is  considered 

bills  arc  not  yet  mature.     Newhall  v.  prima  facie  as  payment,  such  a  bill  or 

42*  [497] 


483 


THE   LAW   OF   CONTRACTS. 


BOOK   III. 


It  is  often  important,  and  sometimes  difficult  to  determine 
whether  the  goods  which  it  is  sought  to  stop  are  still  in 
Irmisitn.  [d)  The  general  rule  is,  that  they  are  so  not  only 
while  in  motion,  and  not  only  while  in  the  actual  pos- 
session of  the  carrier,  (although  he  was  appointed  and 
specified  by  the  consignee,)  but  also  while  they  are  de- 
*  posited  in  any  place  distinctly  connected  with  the  trans- 
mission or  delivery  of  them,  (e)  or  rather,  while  in  any  place 


note,  given  for  the  whole  price,  would 
defeat  the  right  of  stoppage  ?  Sec 
Chapman  v.  Searle,  3  Pick.  38 ;  Hutch- 
jns  V.  Olcutt,  4  Verm.  .549 ;  White  v. 
Dougherty,  Mart.  &  Yerg.  309.  See 
Horncastle  v.  Farran,  3  B.  &  Aid.  497 ; 
Bunney  v.  Poyntz,  4  B.  &  Ad.  568. 

{d)  If  part  of  the  goods  have  been 
delivered,  the  rest  may  nevertheless  be 
.stopped.  Buckley  i'.  Furniss,  17  Wend. 
504.  So  held  where  the  goods  were 
separated,  and  one  wagon-load  had  been 
delivered  before  the  rest  arrived.  See 
also  Hanson  v.  Meyer,  6  East,  614. 
In  Tanner  v.  Scovell,  14  M.  &  W.  28, 
goods  were  shipped  for  London,  and 
were  landed  at  a  wiiarf  and  entered  on 
the  wharfingers  books  in  the  consignor's 
name  ;  he  had  also  given  the  vendee  an 
order  for  their  delivery,  under  which  he 
had  received  and  sold  the  greater  part ; 
held,  notwithstanding,  the  transitus  of 
the  rest  might  be  arrested.  On  the 
other  hand,  in  Hammond  v.  Anderson, 
4  B.  &  P.  69,  the  vendor  and  vendee 
both  lived  in  the  same  town ;  and  the 
goods  lay  at  thewharf  of  a  third  person. 
The  vendee  having  received  an  order 
for  the  delivery  of  the  property,  went  to 
the  wharf,  weighed  (he  whole,  and  took 
away  a  part ;  it  was  held  that  the  vendor 
had  then  no  right  to  stop  the  remainder. 
So  in  Slubey  v.  Heyward,  2  H.  BI.  504, 
tlie  whole  property  arrived  at  the  port 
of  delivery;  the  consignees  entered  the 
whole  cargo  at  the  custom  house ;  they 
also  removed  a  part  before  the  consignor 
attempted  to  stop  the  goods.  It  was 
held  too  late.  See  also  Jones  v.  Jones, 
8  M.  &  W.  431  ;  Bunney  v.  Poyntz,  4 
B.  &  Ad.  571,  where  part  delivery  of  a 
portion  of  a  hay  stack,  with  intent  to 
separate  that  from  the  remainder,  was 
held  not  sufficient.  A  valid  stoppage  of 
part  of  the  goods  forwarded  under  an 
entire  contract  will  not  abrogate  the 
effect  of  an  actual  or  constructive  pos- 
session acquired  by  the  consignor  of  the 

[498] 


residue.  Wentworth  v.  Outhwaite,  10 
M.  &  \V.  436,  a  very  important  case. 
The  dictum,  of  Taunton,  J.,  in  Betts  v. 
Gibbins,  2  Ad.  &  El.  57,  that  a  partial 
delivery  is  prima  facie  a  delivery  of  the 
whole,  has  been  denied.  See  Tanner  v. 
Scovell,  14  M.  &  W.  37.  This  seems 
to  have  been  mainly  on  the  ground  that 
it  was  not  intended  by  the  vendee,  by 
taking  possession  of  part,  to  take  pos- 
session of  the  whole,  but  to  separate 
that  part,  and  take  possession  of  it 
alone.  In  Crawshay  i\  Eades,  1  B.  & 
C.  181,  A.  delivered  a  quantity  of  iron 
to  be  conveyed  to  B.  the  vendee.  The 
carrier  landed  a  part  of  the  iron  on  B.'s 
wharf,  when  learning  that  B.  had  stop- 
ped payment,  he  reloaded  the  same  on 
his  barge,  and  carried  the  whole  to  his 
own  premises.  Held  that  the  vendor 
might  stop  all  the  goods,  the  carrier 
having  a  lien  on  the  whole  for  his 
freight,  and  as  he  had  shown  no  assent 
to  their  delivery  without  payment  of  his 
lien,  no  part  of  the  goods  ever  came 
into  the  possession  of  the  vendee.  See 
on  this  subject  also.  Miles  v.  Gorton,  2 
Cr.  &  M.  504  ;  Dixon  v.  Yates,  5  B.  & 
Ad.  313. 

(e)  This  point  was  much  discussed 
in  Sawyer  v.  Joslin,  20  Verm.  172. 
There  the  goods  were  shipped  at  Troy, 
N.  Y.,  directed  to  the  purchaser  at  Ver- 
gennes,  Vt.  They  were  landed  upon 
the  wharf  at  Vergennes,  half  a  mile 
from  the  purchaser's  place  of  business. 
The  purchaser's  goods  were  usually 
lauded  at  the  same  place,  and  it  was 
not  customary  for  the  wharfinger,  or  the 
carrier,  or  any  one  for  them,  to  have 
any  care  of  the  goods  after  they  were 
landed ;  but  the  consignee  was  accus- 
tomed to  transport  the  goods  from  the 
wharf  to  his  place  of  business,  as  M'as 
also  the  custom  with  other  persons  hav- 
ing goods  landed  there.  The  goods 
while  on  the  wharf  were  not  subject  to 
any  lien  for  freight  or  charges  ;  it  was 


CH.   VI.] 


STOPPAGE   IN  TRANSITU. 


484 


not  actually  or  constructively  the  place  of  the  consignee,  or 
so  in  his  possession  or  under  his  control,  that  the  putting 
them  there  implies  the  intention  of  delivery.  Thus,  if  goods 
are  lodged  in  a  public  warehouse  for  non-payment  of  duties, 
they  are  not  in  the  possession  of  the  vendee,  and  the  vendor 
may  stop  them.  (/)  So  where  goods  are  still  in  the  custom- 
house, the  right  to  stop  them  is  not  defeated,  although  the 
vendee  has  paid  the  freight,  the  goods  having  been  not  en- 
tered through  loss  of  the  invoice,  [g)  The  entry  of  the  goods 
without  payment  of  duties  is  not  a  termination  of  the 
transit.  {Ji) 

*  They  are  in  transit  until  they  pass  into  the  possession  of 
the  vendee.    But  this  possession  may  be  actual  or  constructive. 


held  that  a  delivery  on  the  wharf  was  a 
constructive  delivery  to  the  vendee,  and 
that  the  right  of  stoppage  was  gone 
when  the  goods  were  landed.  The 
cases  on  this  point  were  thus  classified 
by  Hall,  J.,  who  delivered  the  opinion 
oi'  the  court :  —  "  The  cases  cited  and 
relied  upon  by  the  plaintiff's  counsel, 
where  the  transit  was  held  not  to  have 
terminated,  will,  I  think,  all  be  found 
to  fall  within  one  or  the  other  of  the 
following  classes  :  —  1 .  Cases  in  which 
it  has  been  held  that  the  right  of  stop- 
page existed,  where  the  goods  were  ori- 
ginally forwarded  on  board  of  a  ship 
chartered  by  the  vendee.  2.  Where  the 
delivery  of  the  goods  to  the  vendee  has 
been  deemed  incomplete,  by  reason  of 
his  refusal  to  accept  them.  3.  Where 
goods  remained  in  the  custom-house, 
subject  to  a  government  bill  for  duties. 
4.  Where  they  were  still  in  the  hands 
of  the  carrier,  or  wharfinger,  as  his 
agent,  subject  to  the  carrier's  lien  for 
freights.  5.  Where  the  goods,  though 
arrived  at  their  port  of  delivery,  were 
still  on  shipboard,  or  in  the  hands  of 
the  ship's  lighterman,  to  be  conveyed  to 
the  wharf.  G.  Where  the  goods  had 
performed  part  of  tlicir  transit,  but  were 
in  the  hands  of  a  middle  man,  to  be  for- 
warded on  by  other  carriers."  Tucker 
V.  Humphery,  1  M.  &  P.  378,  is  an  im- 
portant case.  There  goods  were  ship- 
ped on  board  a  vessel  addressed  to  the 
defendant's  wharf  for  one  Gilbert.  An 
invoice  was  sent  to  Gilbert,  stating  that 
the  goods  were  bought  and  shipped  for 
him,  and  on  his  account  and  risk ;  and 


in  the  ship's  manifest  they  were  marked 
to  be  delivered  "  to  order."  Before  the 
arrival  of  the  vessel  the  purchaser  be- 
came bankrupt,  and  after  the  vessel 
reached  the  wharf,  but  before  the  goods 
were  landed,  they  were  claimed  by  a 
person  on  behalf  of  the  consignor,  and 
they  were  delivered  to  him.  In  an  ac- 
tion by  the  assignees  of  the  consignee 
to  recover  the  goods,  held,  the  consignor 
had  a  right  to  stop  them.  See  other 
instances  in  Eichardson  v.  Goss,  3  B. 
&  P.  127;  Loeschman  v.  Williams,  4 
Camp.  181 ;  Mills  v.  Ball,  2  B.  &  P. 
457  ;  Rowe  v.  Pickford,  1  Moore,  526  ; 
Leeds  v.  Wright,  3  B.  &  P.  320. 

(/)  Northey  v.  Field,  2  Esp.  613 ; 
Nix  V.  Olive,  cited  in  Abbot  on  Ship- 
ping, 490 ;  Mottram  v.  Heyer,  5  Denio, 
629,  opinion  of  the  Chancellor. 

([/)  Donatli  V.  Brownhead,  7  Barr,  301. 

(h)  Mottram  v.  Heyer,  5  Denio,  629, 
1  Denio,  483,  an  important  case.  The 
defendants  were  merchants  in  New  York. 
They  ordered  the  plaintilFs  to  send  them 
from  England  a  case  of  hardware.  It 
arrived  April  7,  when  the  bill  of  lading 
was  delivered  to  the  plaintiffs,  and  the 
freight  paid.  On  the  9th  the  goods 
were  entered  at  the  custom-house,  and 
carried  from  the  ship  to  the  public  store. 
While  there,  and  before  the  duties  were 
paid,  the  defendants  became  insolvent, 
and  the  plaintiffs  demanded  of  thcin  the 
goods.  Tlicy  refused  to  deliver  them, 
and  afterwards  paid  the  duties,  and  re- 
moved them  to  their  store.  It  was  held 
that  the  demand  was  not  sufficient  to 
revest  the  title  in  the  plaintiffs. 

[499] 


485 


THE   LAW   OF   CONTRACTS. 


[book  III. 


The  doctrine  that  the  goods  must  come  to  the  "  corporal 
touch"  of  the  vendee,  as  was  once  said  by  Lord  Kenyon, 
has  long  since  been  exploded,  (i)  Thus,  suffering  the  goods 
to  be  marked  and  resold,  and  marked  again  by  the  second 
purchaser,  has  been  considered  a  constructive  delivery,  (j) 
So,  a  delivery  by  the  vendor,  to  the  vendee,  of  the  key  of  the 
vendor's  warehouse,  where  the  goods  are  stored,  amounts  to 
a  delivery,  (k)  So,  demanding  and  marking  tlie  goods  by 
the  vendee's  agent  at  the  inn  where  the  goods  arrived  at  their 
destination.  (/) 

If  the  carrier,  by  reason  of  an  arrangement  with  the  con- 
signee, or  for  any  cause,  remains  in  possession,  but  holds  the 
goods  only  as  the  agent  of  the  consignee,  and  subject  to  his 
order,  this  is  the  possession  of  the  consignee,  (m)  Yet,  even 
*in  cases  where  an  existing  usage  authorizes  a  carrier  to  re- 
tain the  goods  in  his  hands  as  security  for  his  whole  claim 
against  a  consignee,  the  consignor  may  still  stop  them  as  in 
transitu,  and  take  them  from  the  carrier,  by  paying  to  him 


(i)  "Wright  V.  Lawes,  4  Esp.  82; 
Mottram  v.  Heyer,  1  Dcnio,  483. 

(./)  StOYckl  V.  Hughes,  14  East,  308. 

(k)  So  thought  Lord  Kenyon  him- 
self in  Ellis  u.  Hunt,  3  T.  R.  4G8. 

(0  Ellis  V.  Hunt,  3  T.  R.  464.  So 
if  the  vendor  agree  to  let  the  goods  lie 
in  his  warehouse,  for  a  short  time,  al- 
though y/'ee  of  rent,  and  to  accommodate 
the  vendee.  Barrett  v.  Goddard,  3  Ma- 
son, 107.  But  see  Townley  v.  Crump, 
4  Ad.  &  El.  58,  contra.  So  if  rent  be 
paid.  Hurry  v.  Mangles,  1  Camp.  452. 
So  delivering  to  the  vendee  a"  bill  of 
parcels,  with  an  order  on  the  store- 
keeper for  the  delivery  of  the  goods. 
HoUingsworth  v.  Napier,  3  Caines,  182. 
But  quaere,  see  post.  So,  giving  an  or- 
der by  the  vendor  to  the  keeper  of  a 
warehouse,  for  the  delivery  of  the  goods. 
Harman  i\  Anderson,  2  Camp.  243. 
See  also  Frazer  v.  Hilliard,  2  Strob. 
309.  Delivery  to  a  mercantile  house, 
merely  for  transmission  to  the  vendee, 
by  a  forwarding  house,  does  not  take 
away  the  right  of  stoppage.  Hays  v. 
Mouille,  14  Penn.  St.  R.  48. 

(;w)  This  principle  is  well  illustrated 
by  the  case  of  Allan  v.  G ripper,  2  Cr.  & 
Jcr.  218,  2  Tyrwh.  217.  The  goods 
were  conveyed  by  a  carrier  by  water, 
and  deposited  in  the  carrier's  M'arc- 
[500] 


house,  to  be  delivered  thence  to  the 
purchaser  or  his  customers,  as  they 
should  be  wanted,  in  pursuance  of  an 
agreement  to  this  effect  between  the 
carrier  and  the  purchaser.  This  was 
the  usual  course  of  business  between 
them.  It  was  held  that  the  carrier  be- 
came the  warehouseman  of  the  pur- 
chaser, upon  the  goods  being  deposited 
there,  and  that  the  vendor's  right  of 
stoppage  was  gone.  And  the  case  was 
likened  to  Foster  v.  Frampton,  6  B.  & 
C.  107,  9  D.  &  R.  108,  where  the  vendee 
desired  the  carrier  for  his  own  conve- 
nience to  let  the  goods  remain  in  his 
warehouse  until  he  received  further  di- 
rections :  and  also  took  home  samples 
of  the  goods ;  but  before  the  bulk  was 
removed  he  became  insolvent ;  held  that 
the  right  of  stoppage  in  transitu  was 
gone.  Scott  v.  'Pettit,  3  B.  &  P.  469, 
was  decided  on  the  same  principle. 
Goods  were  sent  from  ^Manchester  di- 
rected to  the  purchasers  at  London  ;  but 
in  pursuance  of  a  general  order  from 
the  buyer  to  the  seller  were  sent  to  the 
warehouse  of  the  buyer's  packer,  and 
by  the  warehouseman  were  booked  to 
the  buyer's  account,  and  the  warehouse- 
man impacked  them.  The  ti-ansitus 
was  held  at  an  end  when  the  goods 
reached  the  warehouse. 


CH.    VI.] 


STOPPAGE  IN  TRANSITU. 


-485 


the  amount  due  specifically  for  the  carriage  of  those  goods.  («) 
And  the  master  of  a  ship  chartered  wholly,  or  even  owned  by 
the  consignee,  may  nevertheless  be  a  carrier  in  whose  hands 
the  consignor  may  stop  the  goods,  if  the  goods  are  to  be  de- 
livered finally  to  the  charterer  himself,  (o) 


(n)  Oppcnhciin  v.  Russell,  3  B.  &  P. 
42,  a  very  excellenl  case  upon  this  sub- 
ject. 

(o)  Stubbs  V.  Lund,  7  Mass.  453, 
recognizes  this  principle.  There  the 
vendors  resided  in  Liverpool,  England  ; 
the  vendees  in  America.  The  goods 
were  delivered  on  board  the  vendees' 
own  ship,  at  Liverpool,  and  consigned 
to  them  or  assigns,  for  which  the  mas- 
ter had  signed  bills  of  lading,  The 
vendors,  hearing  of  the  insolvency  of 
the  vendees  before  the  vessel  left  Liver- 
pool, refused  to  let  the  vessel  sail, 
claiming  a  right  to  stop  the  goods,  and 
that  they  had  not  reached  their  destina- 
tion. Th'e  right  of  stoppage  was  allow- 
ed, mainly,  it  seems,  on  the  ground  that 
the  goods  were,  by  the  bills  of  lading, 
to  be  transported  to  the  vendees,  and  were 
in  transit  until  they  reached  them  ;  but 
it  was  tliought  that  if  the  goods  had 
been  intended  for  some  foreign  market, 
and  never  designed  to  reach  arr}-  posses- 
sion of  the  purchasers,  more  than 
they  then  had  at  the  time  of  their  ship- 
ment, tlie  case  would  be  different,  and 
the  transit  in  such  a  case  would  be  con- 
sidered as  ended.  Paisons,  C.  J.,  thus 
laid  down  the  law  on  this  point :  —  "  In 
our  opinion  the  true  distinction  is,  whe- 
ther any  actual  possession  of  the  con- 
signee or  his  assigns,  after  the  termina- 
tion of  tlie  voyage,  be  or  be  not  pro- 
vided for  in  tlie  bills  of  lading.  When 
such  actual  possession,  after  tlie  termi- 
nation of  the  voyage,  is  so  provided  for, 
then  the  right  of  stopping  in  transitu  re- 
mains after  the  shipment.  Thus,  if 
goods  are  consigned  on  credit,  and  de- 
livered on  board  a  ship  cliartcrcd  by  the 
consignee,  to  be  imported  by  him,  the 
right  of  stopping  in  transitu  continues 
after  the  shipment,  (3  East,  381,)  but  if 
the  goods  are  not  to  be  imported  by  the 
consignee,  but  to  be  trans])orted  from 
the  place  of  shipment  to  a  foreign  mar- 
ket, the  right  of  stopping  in  transitu 
ceases  on  the  shipment,  tlie  transit  being 
then  completed  ;  because  no  other  actual 
possession  of  tlie  goods  by  the  consignee 
is  provided  for  in  the  bills  of  lading, 
which  express  the  terms  of  the   ship- 


ment." The  court  in  this  case  rely  upon 
Bolitlingk  r.  Inglls,  3  East,  3S1,' where 
a  person  in  England  chartered  a  ship  to 
go  to  Russia,  and  bring  home  goods 
from  his  correspondent  there,  the  goods 
to  make  a  complete  cargo.  The  vessel 
proceeded  to  Russia, and  tlie  correspond- 
ent shipped  the  goods  ordered  at  the 
risk  of  the  freigliter,  and  sent  him  tlie 
invoice  and  bills  of  lading.  Tlie  goods 
were  to  be  conveyed  to  the  freighter  in 
England.  It  was  held  that  the  delivery 
on  board  the  vessel  was  not  a  final  de- 
livery, and  that  th'e  goods  might  be 
stopped  on  the  way  ;  and  on  tlie  same 
ground  as  before  stated  that  they  "  •were 
in  their  passage  or  transit  from  the  con- 
signor to  the  consignee."  The  distinction 
alluded  to  in  the  next  note,  was,  how- 
ever, fully  recognized.  See  also  Coxa 
V.  Harden,  4  East,  211.  Newhall  v. 
Vargas,  13  Maine,  93,  is  also  a  clear 
illustration  of  the  rule  of  tlie  text.  The 
purchaser  lived  in  America ;  the  con- 
signor in  Havana.  The  former  sent 
his  own  vessel  to  Havana  for  a  cargo  of 
molasses,  which  was  shipped  on  board 
the  vessel,  consigned  to  tlie  vendee,  and 
to  be  delivered  to  him  at  his  port  of 
residence ;  it  was  held  that  the  vendor 
had  the  right  to  stop  the  goods  at  any 
time  before  they  came  into  the  actual 
possession  of  the  vendee,  and  the  case 
of  Stubbs  V.  Lund  was  fully  approved. 
See  also  Thompson  v.  Trail,  2  C.  &P. 
334;  Buckley  I'.Furniss,  IS'Wend.  137, 
17  Wend.  504.  The  case  of  Bolin  v. 
Huffnagle,  1  Rawle,  1,  seems  in  direct 
conflict  with  these  authorities,  and  we 
think  cannot  be  supported.  But  see 
Van  Casteel  v.  Booker,  2  Exch.  708, 
opinion  of  Parke,  B.  The  recent  case 
of  Turner  v.  The  Trustees  of  Liverpool 
Docks,  in  the  Exchequer  Chamber,  6 
E.  L.  &  E.  507,  is  an  important  case  on 
this  point.  There  A.  &  Co..  residing  in 
Charleston,  America,  consigned  cotton 
to  B.  &  Co.,  living  at  Liverpool,  and 
delivered  it  onB.  &  Co.'s  own  vessel  at 
C;harleston,  taking  a  bill  of  lading  to 
deliver  to  their  order  or  their  assigns, 
they  paying  no  freight,  '•  being  OKVicr's 
properly."  The  consignors  indorsed  the 
[501] 


486 


THE   LAW   OF   CONTRACTS. 


[book  III. 


So,  if  by  the  bill  of  lading  the  goods  are  deliverable  to  the 
order  of  the  consignor  or  his  assigns,  the  property  therein 
does  not  pass  to  the  consignee,  so  as  to  defeat  this,  right, 
although  they  may  be  delivered  on  board  the  consignee's' 
own  vessel,  (p)  and  although  the  bill  of  lading  expressed 
that  the  consignee  was  to  pay  no  freight,  the  goods  "being 
owner's  property."  (q)  But  it  might  be  otherwise  if  it  ap- 
peared "by  the  bill  of  lading  that  the  goods  were  put  on 
board  to  be  carried  for  and  on  account  and  risk  of  the  con- 
signee, (r)  So  if  the  goods  are  intended  for  a  market  foreign 
to  the  residence  of  the  consignee,  and  never  designed  to  come 
into  the  actual  possession  of  the  charterer,  then  it  would  seem 
that  a  delivery  on  board  of  the  vessel,  whether  owned  or  hired 
by  the  purchaser  or  not,  has  been  held  final,  and  the  right  of 
stoppage  in  transitu  gone,  (s) 


bill  to  the  "Bank  of  Liverpool  or 
order."  The  consignees  became  bank- 
rupt before  the  cotton  arrived  at  Liver- 
pool. The  consignors,  on  its  arrival, 
claimed  to  stop  the  cargo  in  transitu. 
The  assignees  in  bankruptcy  claimed 
the  cotton,  as  having  been  so  completely 
delivered  as  to  vest  in  the  bankrupts  as 
soon  as  it  was  put  on  board  their  own 
vessel  at  Charleston  specially  appointed 
by  them  to  bring  home  such  cargo. 
Patleson,  J.,  said: — "  There  is  no  doubt 
that  the  delivery  of  goods  on  board  the 
purchaser's  own  ship  is  a  delivery  to 
him,  unless  the  vendor  protects  himself 
by  special  terms  restraining  the  effect 
of  such  delivery.  In  the  present  case 
the  vendors,  by  the  terms  of  the  bill  of 
lading,  made  the  cotton  deliverable  at 
Liverpool  to  their  order  or  assigns,  and 
therefore  there  was  not  a  delivery  of  the 
cotton  to  the  purchasers  as  owners,  al- 
though there  M'as  a  delivery  on  board 
their  ship.  The  vendors  still  reserved 
to  themselves,  at  the  time  of  the  deli- 
very to  the  captain,  a  jus  disponendi  of 
the  goods,  which  he  by  signing  the  bill 
acknowledged."  See  also  EUershaw  v. 
Magniac,  6  Exch.  570,  note ;  Van  Cas- 
teel  V.  Booker,  2  Exch.  691  ;  Wait  v. 
Baker,  2  Exch.  1  ;  Mitchel  ;;.  Ede,  11 
Ad.  &  El.  888  ;  Jenkyns  v.  Brown,  14 
Q.  B.  496  ;  Key  v.  Cotesworth,  14  E. 
L.  &  E.  435  ;  Aguirre  v.  Parmclee,  22 
Conn.  473. 

(p)  Wait  V.  Baker,  2  Exch.  1. 

[502] 


(q)  Turner  v.  Trustees  of  Liverpool 
Docks,  6  E.  L.  &.  E.  507. 

(r)  Van  Casteel  v.  Booker,  2  Exch. 
G91  -  708 ;  Wilmshurst  v.  Bowker,  7  M. 

6  G.  882;  Jenkyns  v.  Brown,  19  Law 
J.  Rep.  (N.  S.)  Q.  B.  286,  14  Q.  B.496. 

(s)  T^is  distinction  is  fully  supported 
by  Fowler  v.  Kymer,  cited  in  3  East, 
396,  and  recognized  in  Stubbs  v.  Lund, 

7  Mass.  457;  Newhall  v.  Vargas,  13 
Maine,  93,  Rowley  v.  Bigelow,  12  Pick. 
308,  supports  the  same  view.  The  court 
there  said : — "  We  think  it  very  clear,  that 
a  delivery  of  the  corn  on  board  of  a  ves- 
sel appointed  by  the  vendee  to  receive 
it,  not  for  the  purpose  of  transportation 
to  him,  or  to  a  place  appointed  by  him, 
to  be  delivered  there  for  his  use,  but  to 
be  shipped  by  such  vessel,  in  his  name, 
from  his  own  place  of  residence  and  bu- 
siness, to  a  third  person,  was  a  termina- 
tion of  the  transit,  and  the  right  of  the 
vendor  to  stop  in  transitu  was  at  an 
end."  In  Valpy  v.  Gibson,  4  C.  B. 
837,  it  was  held  that  if  goods  are  sold 
to  be  shipped  to  some  ultimate  destina- 
tion, of  which  the  vendor  had  know- 
ledge, but  were  first  to  go  into  the  hands 
of  an  agent  of  the  purchaser,  and  there 
await  the  purchaser's  orders,  the  right 
of  stoppage  in  transitu  was  determined 
on  delivery  to  such  agent.  See  also  the 
still  later  case  of  Cowas-jee  v.  Thomp- 
son, 5  Moore,  1*.  C.  165.  There  goods 
contracted  to  be  sold  and  delivered 
"  free  on  board,"  to  be  paid  for  by  cash 


CH.   VI.] 


STOPPAGE   IN  TRANSITU. 


487-*488 


As  the  goods  may  pass  constructively  into  the  possession 
of  the  consignee,  so  they  may  be  transferred  by  him  before 
they  reach  him,  in  such  a  way  as  to  destroy  the  consignor's 
right  of  stoppage  in  transitu.  This  may  be, done  by  an  in- 
dorsement and  delivery  of  the  bill  of  lading.  This  instru- 
ment is  now,  (as  we  had  occasion  to  say  in  an  earlier  part 
of  this  work,)  (/)  by  the  custom  of  merchants,  which  is 
adopted  by  the  courts,  and  made  a  rule  of  law,  regarded  as 
negotiable ;  or,  more  accurately  speaking,  as  quasi  negotia- 
ble, its  indorsement  and  delivery  operating  as  a  symbolic 
delivery  of  the  goods  mentioned  in  it.  (w)  And  such  transfer, 
*if  it  is  in  good  faith  and  for  a  valuable  consideration,  passes 
the  property  to  the  second  vendee,  who  holds  it  free  from 
the  right  of  the  original  vendor  to  stop  the  goods  in  tran- 
situ, [v)     But  a  second  vendee,  to  whom  the  bill  of  lading 


or  bills,  at  the  option  of  the  purchasers, 
were  delivered  on  board,  and  receipts 
taken  from  the  mate  by  the  lighterman 
emplo3'ed  by  the  sellers,  who  handed 
the  same  over  to  them.  The  sellers 
apprised  the  purchasers  of  the  delivery, 
who  elected  to  pay  for  the  goods  by  a 
bill,  which  the  sellers  having  drawn, 
was  duly  accepted  by  the  purchasers. 
The  sellers  retained  the  mate's  receipts 
for  the  goods,  but  the  master  signed 
the  bill  of  lading  in  the  purchasers' 
names,  who,  while  the  bill  they  accept- 
ed was  running,  became  insolvent.  In 
such  circumstances,  held  by  the  Judicial 
Committee  of  the  Privy  Council  (re- 
versing the  verdict  and  judgment  of  the 
Supreme  Court  at  Bombay,)  that  trover 
would  not  lie  for  the  goods,  for  that  on 
their  delivery  on  board  the  vessel  they 
were  no  longer  in  transitu,  so  as  to  be 
stopped  by  the  sellers ;  and  that  the 
retention  of  the  receipts  by  the  sellers 
was  immaterial,  as  after  their  election 
to  be  paid  by  a  bill,  the  receipts  of  the 
mate  were  not  essential  to  the  trans- 
action between  the  seller  and  purchaser. 

{t)  See  an^c,  p.*  240. 

(w)  Small  V.  Moates,  9  Bing.  574; 
Dixon  V.  Yates,  5  B.  &  Ad.  313  ;  Jen- 
kyns  V.  Usborne,  7  M.  &  Gr.  678.  The 
case  of  Thompson  v.  Dominy,  14  M.  & 
W.  402,  shows  that  the  mere  indorse- 
ment of  a  hill  of  lading  docs  not  author- 
ize the  indorsee  to  bring  a  suit  in  his 
own  name  against  the  signers,  for  their 
failure  to  deliver  the  goods  according 


to  its  terms :  it  would  not  be  correct, 
therefore,  to  consider  such  bills  nerjotia- 
hie  exactly,  although  they  have  some- 
times been  so  called,  (sec  Berkley  v. 
Watling,  7  Ad.  &  El.  29;  Bell  v.  Moss, 
.')  Whart.  189,  205.)  but  rather  that  an 
indorsement  of  such  bill  would  amount 
to  a  stjmholical  delivery.  And  if  there  were 
also  a  hona  jide  sale  accompanying  the 
transfer,  the  right  of  the  vendor  to  stop 
in  transitu  is  gone.  Newsom  v.  Thorn- 
ton, 6  East,  41,  shows  this.  There 
Lord  EUenhoroiigii,  C.  J.,  said: — "A 
bill  of  lading  indeed  shall  pass  the  pro- 
perty upon  a  bona  Jide  indorsement  and 
delivery,  where  it  is  intended  so  to  ope- 
rate, in  the  same  manner  as  a  direct  de- 
livery of  the  goods  themselves  would 
do,  if  so  intended.  But  it  cannot  operate 
farther."  Laurence,  J.,  added:  —  "In 
Lickbarrow  v.  Mason,  some  of  the 
judges  did  indeed  liken  a  bill  of  lading 
to  a  bill  of  exchange,  and  considered 
that  the  indorsement  of  the  one  did 
convey  the  property  in  the  goods  in  the 
same  manner  as  the  indorsement  of  the 
other  conveyed  the  sum  for  which  it 
was  drawn.  But  in  the  Exchequer 
Chamber  there  was  much  argument  to 
show  that,  in  itself,  the  indorsement  of 
a  bill  of  lading  was  no  -trctnsfer  of  the 
propertji,  though  it  might  operate,  as 
other  instruments,  as  evidence  of  the 
transfer." 

(y)  The  leading  case  on  this  subject 
is  Lickbarrow  v.  Mason,  first  decided 
in  the  King's  Bench,- 1787,  and  reported 

[503] 


489^ 


THE   LAW   OF   CONTRACTS. 


[book    III. 


is  not  transferred,  or  not  so  transferred  as  to  carry  good  title, 
and  wlio  neglects  to  take  actual  or  constructive  possession, 
is  in  no  better  position  than  the  first  vendee,  under  whom  he 
claims  ;  and  the  goods  may  be  taken  from  him  by  the  first 
vendor,  on  the  insolvency  of  the  first  vendee.  And  if  the 
bill  of  lading  be  so  transferred  and  indorsed  by  way  of  pledge 
to  secure  the  consignee's  debt,  the  consignor  does  not  lose 
entirely  his  right  to  stop  the  goods  in  transitu,  but  holds  it 
*subject  to  the  rights  of  the  pledgee.  That  is,  he  may  enforce 
his  claim  to  hold  the  surplus  of  the  value  of  the  goods,  after 
the  pledgee's  claim  is  satisfied ;  and  he  holds  this  surplus  to 
secure  the  debt  of  the  consignee  to  him.  (iv)  But  the 
pledgee's  claim,  which  the  consignor  is  thus  bound  to  recog- 
nize, would  not  be  for  a  general  balance  of  account ;  but 
only  for  the  specific  advances  made  upon  the  security  of  that 
particular  bill  of  lading.  And  therefore,  by  paying  or  tender- 
ing that  amount,  the  consignor  acquires  the  right  of  retaking 


in  2  T.  R.  G3,  and  from  thence  carried 
to  the  Exchequer  Chamber,  where,  in 
1790,  the  decision  below  was  reversed; 
reported  in  1  H.  BI.  357.  The  record 
was  thence  removed  into  the  House  of 
Lords,  where  the  judgment  of  the  Ex- 
chequer Chamber  was  itself  reversed, 
and  a  venire  de  novo  awarded  in  June, 
1793.  Buller's  able  opinion  before  the 
House  of  Lords  is  reported  in  6  East, 
21,  note.  The  cause  was  again  tried 
before  the  King's  Bench  in  1794,  at  the 
head  of  which  Lord  Kenyon  had  in  the 
mean  time  been  placed,  and  decided  in 
the  same  manner  as  in  1787,  when  the 
case  was  first  before  them.  If  a  writ  of 
error  was  again  brought,  it  was  proba- 
bly abandoned,  as  no  farther  report  of 
the  case  appears.  A  clear  and  succinct 
history  of  the  law  on  this  point  is  given 
in  Abbott  on  Shipping,  471.  The  case 
of  Lickbarrow  v.  Mason  is  to  be  under- 
stood as  deciding  only,  that  if  there  has 
been  an  actual  and  hand  fide  sale  of 
goods  by  the  consignee,  the  consignor 
cannot  stop  them,  if  the  purchaser  of 
the  consignee  has  also  taken  an  assign- 
ment to  himself  of  the  original  bill  of 
lading  from  the  consignor  to  the  con- 
signee. The  mere  assignment  of  a  bill 
of  lading,  not  based  on  an  actual  sale 
of  the  goods,  it  is  believed,  would  not 
destroy   the  vendor's   right.     The   de- 

[504] 


livery  of  a  bill  of  lading  merely,  the 
same  being  in  the  hands  of  the  original 
consignee,  iinindorsed.  will  not,  of  course, 
interfere  with  the  vendor's  right  of  stop- 
page. Tucker  v.  Humphrev,  4  Bing. 
516,  1  M.  &  P.  394,  Park,  J.  And  a 
fortiori,  the  delivery  to  the  vendee  of  a 
mere  shipping  note  of  the  goods,  or  a 
delivery  order  for  them,  instead  of  a 
bill  of  lading.  Jenkyns  v.  Usbornc,  7 
M.  &  Gr.  678  ;  Akerman  v.  Humpherv. 
1  C.  &  P.  53;  McEwan  v.  Smith,  I's 
Jurist,  265,  2-nouse  of  Lords  Gas.  309  ; 
Townley  v.  Crump,  4  Ad.  &  EI.  53. 
See,  however,  HoUingsworth  i-.  Napier, 
3  Gaines,  182.  In  Walter  v.  Itoss,  2 
Wash.  C.  C.  R.  283,  is  an  excellent 
summary  of  the  law  on  this  point.  It 
is  there  Vie/(i  that  th.e  indorsement  and 
delivery  of  a  bill  of  lading,  or  the  de- 
livery without  indorsement,  if  by  the 
terms  of  the  bill  the  property  is  to  be  de- 
livered to  a  particular  person,  amounts 
to  a  transfer  of  the  property,  but  not  to 
defeat  the  vendor's  right  of  stoppage 
before  the  goods  come  actually  into  the 
possession  of  the  vendee.  But  goods 
at  sea  may  be  sold,  and  if  the  bill  of 
lading  is  indorsed,  the  right  to  stop  in 
transitu  is  gone.  See  also  Rvberg  i-. 
Snell,  Id.  403. 

(ic)  In  re  Westzinthus,  5   B.  &  Ad. 
817  ;  Chandler  v.  Fulton,  10  Tex.  2. 


CH.   VI.]  STOPPAGE   IN   TRANSITU.  *490 

all  the  goods,  (x)  And  if  the  pledgor  had  pledged  some  of 
his  own  goods  together  with  those  of  the  consignor,  the  latter 
would  have  a  right  to  insist  upon  the  appropriation  of  all  the 
pledgor's  own  goods  towards  the  claim  of  the  pledgee,  before 
any  of  the  goods  contained  in  the  bill  of  lading,  (y) 

It  is  said  that  the  exercise  of  this  right  is  an  act  so  far  ad- 
verse to  the  vendee,  that  if  the  goods  be  stopped  by  virtue  of 
an  agreement  between  the  buyer  and  seller,  it  is  no  longer  a 
stoppage  in  transitu;  but  either  a  cancelling  of  the  sale  by 
mutual  consent,  or  a  reconveyance  by  the  buyer,  (a)  And  it 
then  becomes  in  some  cases  a  question  of  considerable  diffi- 
culty, whether  the  buyer  can  dispossess  himself  of  the  goods, 
or  of  his  right  to  them,  for  the  benefit  of  the  seller  ;  or  must 
hold  them  as  a  part  of  the  funds  to  which  his  creditors  gene- 
*  rally  may  look.  The  principle  which  must  decide  such  a 
question  would  seem  to  be  this :  if  the  sale  is  so  far  com- 
plete that  the  property  in  the  goods  has  passed  to  the  buyer, 
and  the  seller  has  become  his  creditor  for  the  price,  the  buyer 
can  have  no  more  right  to  give  to  the  seller  security  or  satis- 
faction or  other  benefit  from  those  goods  than  from  any  others 
which  he  may  possess.  But  so  long  as  the  transaction  is 
incomplete,  the  buyer  may  warn  the  seller  of  the  danger  of 
going  on  with  it,  and  may  aid  him  in  the  use  of  .all  legal 

(x)  Spalding  v.  Ruding,  6   Beavan,  signcc,  made  during   their  transit,  can 

376.  ■  be  set  up  to  defeat  it.     The  consignor 

(;y)  In  re  Westzinthus,  5  B.   &  Ad.  may  rely  upon  his  original  property  in 

817.  the  goods,  and  not  upon  any  transfer  or 

(a)  This  question  was  raised  in  Ash  reconveyance  by  the  vendee.  —  Itisper- 

V.  Putnam,  1  Hill,  302.     So  in  Naylor  fectly  well  settled  that  the  mere  sale  of 

V.  Dennie,  8  Pick.  198,  the  same  ques-  the   goods  by  the  vendee   during  their 

tion  was  examined.     It  was  there  said  transit,   unaccompanied   witli    any   in- 

that  although  the  right  of  stoppage  in  dorsement  or  delivery  of  a  bill  of  lading, 

transitu  is  adverse  to  the  consignee,  that  fcc,  will  not  defeat  the  consignor's  right 

means  only  that  it  cannot  be  exercised  of  stoppage.    Craven  ?'.  Kydcr,  6  Taunt, 

under  a  title  derived  from  the  consignee;  433;    Whitehouse   v.   Frost,   12   East, 

not  that  it  must  be  exercised  in  hosiUity  614  ;  Stoveld  v.  Hughes,  14  East,  308  ; 

to  him.     And  this  right  of  stoppage  is  Miles  v.  Gorton,  2  Cr.  &  M.  504 ;  Dix- 

not  defeated,  merely  because  the  con-  on  v.  Yates,  5  B.  &  Ad.  339;  Stanton 

signee  gives  the  consignor  a  writing  de-  v.  Eager,  IG  Pick.  467.    A  fortiori,  an 

Glaring  tiiat  he  revokes  the  order  for  the  attachment,   or   seizure,  on   execution, 

goods,  and  will  not  receive  them,  and  by  the  creditors  of  the  vendee  will  not. 

requests  the  carrier  to  deliver  them  to  They  can  take  no  more  rights  than  the 

the  consignor.     If  the  consignor,  there-  vendee  himself  had.     Smith  v.  Goss,  1 

fore,  without  regard   to   any  such   re-  Camp.   282  ;    Buckley   v.   Eurniss,    15 

.scission  of  the  sale  by  the 'consignee,  Wend.  137;  Naylor  v.  Dennie,  8  Pick, 

duly  exercise  his  right,  no  previous  at-  198. 
tachmcnt  by  the  creditors  of  the  con- 

VOL.  I.  43  [505] 


-490 


THE  LAW   OF   CONTRACTS. 


[book  III. 


means  to  arrest  the  transaction  where  it  stands,  and  so  save 
to  him  his  property.  (6) 


(/')  In  Smith  v.  Field,  5  T.  R.  402, 
it  was  said  that  a  contract  of  sale  might 
be  rescinded  by  the  consent  of  vendor 
and  vendee,  before  the  rights  of  others 
were  concerned.  But  where  the  vendee 
wished  to  return  the  goods,  and  the 
vendor  instituted  an  attachment  to  at- 
tach them  in  the  hands  of  the  packer  as 
the  property  of  the  vendee,  it  was  con- 
sidered as  an  election  by  the  former  not 
to  rescind  the  contract;  and  the  vendee 
afterwards  having  become  bankrupt,  the 
vendor  was  not  allowed  to  recover  the 
goods  in  trover  against  the  packer.  In 
Saltc  V.  Field,  Id.  211,  goods  were 
bought  by  vendee's  agent,  and  lodged 
in  the  hands  of  the  vendee's  packer. 
While  there,  they  were  attached  as  the 
property  of  the  vendee  by  some  of  his 
creditors.  The  vendee  had  in  fact 
countermanded  the  purchase  by  letter 
to  his  agent,  ivritten  before  the  delivery 
of  the  goods  to  the  packer,  though  not 
received  until  afterwards.  Held^  the 
vendor  assenting  to  take  back  the 
goods,  that  the   property  revested   in 

[506] 


him,  and  the  attachment  was  avoided. 
See  Atkin  v.  Barwick,  1  Strange,  165; 
Harman  v.  Fishar,  1  Cowp.  125;  Al- 
dcrson  v.  Temple,  4  Burr.  2239.  The 
consent  of  the  vendor  to  retake  the 
goods  is,  however,  essential,  where  the 
sale  has  been  completed  bv  actual  de- 
livery. Saltc  V.  Field,  5  "T.  R.  211. 
See  'Richardson  v.  Goss,  3  B.  &  P. 
119;  Bartram  v.  Farebrother,  Danson 
&  Lloyd,  42.  Such  consent  may  be 
inferred  by  the  jury,  if  the  vendor  use 
and  offer  the  property  again  for  sale, 
although  when  he  received  it  back  he 
said  he  would  keep  it  "  without  preju- 
dice.'' Long  V.  Preston,  2  M.  &  P.  262. 
In  Quincy  v.  Tilton,  5  Greenl.  (Ben- 
nett's ed.)  277,  it  is  said  that  where 
parties  agree  to  rescind  a  sale,  the  same 
formalities  of  delivery,  &c.,  are  neces- 
sary to  revest  the  property  in  the  ori- 
ginal vendor,  which  were  necessarj'  to 
pass  it  from  him  to  the  vendee.  See 
also  Lanfcar  v.  Sumner,  17  Mass.  110; 
Miller  v.  Smith,  1  Mason,  437. 


CH.   VII.]  HmiNG   OF   CHATTELS.  491 


CHAPTER  VJI. 

HIRING   OP   CHATTELS. 

Goods  are  often  hired  in  connection  with  real  estate ;  as 
where  one  hires  a  house  with  the  furniture  therein,  or  a  room 
with  its  furniture.  But  although  the  clauses  respecting  such 
hire  of  chattels  may  form  a  part  of  a  contract  concerning  real 
estate,  they  are  construed  and  governed  by  the  principles  of 
the  law  of  personalty.  Much  the  greater  number  of  ques- 
tions which  arise  from  the  hiring  or  letting  to  hire  of  chattels 
are  determined  as  questions  of  bailment ;  and  may  be  dis- 
cussed to  most  advantage  when  we  come  to  that  subject. 

It  sometimes  happens  that  parties  seek  to  give  to  other 
contracts  the  appearance  of  a  contract  to  hire ;  or  that  they 
wish  to  make  use  of  a  contract  to  hire,  for  purposes  usually 
accomplished  by  other  means.  Thus,  suppose  a  person 
about  to  open  a  boarding-house,  and  needing  furniture,  and 
proposing  to  buy  the  same  in  whole  or  in  part  upon  credit. 
The  seller  is  willing  to  trust,  if  he  can  have  the  security  of 
the  property  itself;  but  if  he  does  this  by  sale  and  mortgage 
back,  it  must  be  recorded,  and  an  equity  of  redemption  at- 
taches. To  avoid  this,  he  makes  a  lease  of  the  furniture  to 
the  other  party,  say  for  one  year,  and  the  lease  contains  a 
provision  that  the  lessee  may  buy  the  same  by  paying  a  cer- 
tain price  therefor,  at  certain  times.  The  lessee  takes  the  pro- 
perty into  his  house,  and  a  creditor  without  notice  attaches 
it  as  his  property.  The  question  has  sometimes  arisen 
under  these  circumstances,  whether  this  is  not  in  law  a  sale 
with  mortgage  back;  and  whether  the  attempt  of  the  parties 
to  avoid  the  notice  of  record,  with  the  permission  of  the  ori- 
ginal owner  to  let  the  proposed  purchaser  take  open  posses- 
sion without  giving  any  notice  of  his  rights,  does  not  lay 
him  open  to  lose  the  property  if  a  bond  fide  creditor  of  the 

[507] 


492  '  THE  LAW   OF   CONTRACTS.  [BOOK  III. 

hirer  takes  it  by  attachment.  The  question  is  one  of  mixed 
law  and  fact.  We  do  not  think  that  the  law  attaches  to 
such  a  transaction  an  absolute  presumption  of  fraud ;  and 
unless  the  circumstances  are  such  that  the  jury  can  infer 
fraud  from  them,  actual  or  constructive,  the  title  of  the  ori- 
ginal owner  of  the  furniture  would  prevail.  This  question 
has  arisen  once  or  twice  at  nisi  prius,  but  we  do  not  know 
that  it  has  been  authoritatively  decided  by  courts  of  law, 
sitting  in  bank. 
[508] 


CH.   VIII.]  GUARANTY.  493 


CHAPTER  VIII. 

GUARANTY   OR   SURETYSHIP. 

Sect.  I. —  What  is  a  Guaranty. 

Originally,  the  words  warranty  and  guaranty  were  the 
same ;  the  letter  g-,  of  the  Norman  French,  being  convertible 
with  the  IV  of  the  German  and  English,  as  in  the  names 
William  or  Guillaume.  They  are  now  sometimes  used  indis- 
criminately ;  but,  in  general,  warranty  is  applied  to  a  con- 
tract as  to  the  title,  quality,  or  quantity  of  a  thing  sold, 
which  we  have  already  considered  under  the  head  of 
sales ;  and  guaranty  is  held  to  be  the  contract  by  which  one 
per-son  is  bound  to  another,  for  the  due  fulfilment  of  a  promise 
or  engagement  of  a  third  party.  And  this  we  shall  now 
consider. 

In  general,  a  guaranty  is  not  negotiable,  nor  in  any  way 
transferable,  so  as  to  enable  an  action  to  be  maintained  upon 
it  by  any  other  person  than  him  with  whom  the  contract  is 
made,  (c)     It  is  a  promise  to  pay  the  debt  of  another ;  but 

(c)  True  v.  Fuller,  21  Pick.  140;  to  him  or  hearer.  Auburn,  Sept.  25, 
Tyler  v.  Binney,  7  Mass.  479;  La-  1837."  (Signed)  Thomas  Burns.  And 
mourieux  v.  Hewit,  5  Wend.  307  ;  it  was  held  negotiable.  In  Keed  v.  Gar- 
Springer  V.  Hutchinson,  19  Maine,  359;  vin,  12  S.  &  E.  100,  it  was  held  that  a 
McDoal  r.  Yeomans,  8  Watts,  361  ;  guaranty  given  by  the  assignor  of  a 
Canfield  v.  Vaughan,  8  Martin,  682 ;  bond  runs  with  it  into  whosesoever 
Upham  r.  Prince,  12  Mass.  14;  Miller  hands  it  may  come,  and  the  guarantor 
i\  Gaston,  2  Hill,  188;  Watson  i-.  Mc-  cannot  be  a  witness.  See  McLaren  v. 
Larcn,  19  Wend.  557.  Although  the  Watson,  26  Wend.  425;  Adams  v. 
instrument  may  be  in  the  form  of  a  Jones,  12  Pet.  207;  Walton  v.  Dodson, 
guaranty,  yet  if  it  contain  in  itself  all  3  C.  &  P.  163;  Bradley  v.  Car}-,  8 
the  elements  of  a  negotiable  promissory  Grcenl.  (Bennett's  ed.)  234  ;  Phillips  v. 
note,  it  is  then  negotiable.  Sec  Kctcli-  Bateman,  16  East,  356.  If  a  guaranty 
ell  V.  Burns,  24  Wend.  456.  In  this  is  directed  to  a  particular  house,  by 
case  the  instrument  was  as  follows  :  —  name,  and  another  house  advance  goods 
"  Por  and  in  consideration  of  thirty-one  upon  it,  they  have  no  claim  upon  the 
dollars  and  fifty  cents  received  of  B.  F.  guarantor.  Bleeker  v.  Hyde,  3  McLean, 
Spencer,  I  hereby  guarantee  the  pay-  279 ;  Grant  v.  Naylor,  4  Cranch.  224. 
ment  and  collection  of  the  within  note  And  if   the  letter  of  guaranty  is  ad- 

43*  [509] 


494 


THE  LAW   OF   CONTRACTS. 


[book  III. 


the  guarantor  may  be  held,  although  no  suit  could  be  main- 
tained upon  the  original  debt ;  and  such  guaranty  may  have 
been  required  for  the  very  reason  that  the  original  debt  could 
not  be  enforced  at  law ;  as  where  the  guarantor  promises  to 
be  responsible  for  goods  to  be  supplied  to  a  married  wo- 
man, (c/)  or  to  be  sold  to  an  infant,  not  being  necessaries,  (e) 
But  where  the  original  debt  is  not  enforceable  at  law,  the 
promise  to  be  responsible  for  it  is  considered,  for  some  pur- 
poses, as  direct  and  not  collateral ;  as,  in  fact,  the  original 
promise.  (/)  But  if  an  infant  purchase  necessaries,  and 
give  a  promissory  note  signed  by  himself,  and  by  another  as 
surety,  who  pays  the  note,  such  surety  can  recover  the  amount, 
so  paid,  of  the  infant,  (g-)     In  general,  the  liability  of  the  gua- 


dressecl  to  two  persons  jvnd  received 
and  acted  upon  by  one  only,  the  gua- 
rantor is  not  bound.  Smith  v.  Mont- 
gomery, 3  Texas,  199  ;  Myers  v.  Edge, 
7  T.  E.  254.  But  where  the  guaranty 
is  addressed  to  no  person  in  particular  it 
may  be  acted  upon  by  any  one,  and  if 
such  appear  to  be  the  intention  of  the 
parties,  goods  may  be  furnished  by 
several  different  dealers  on  the  faith  of 
the  guaranty.  Lowry  r.  Adams,  22 
Verm.  160. 

(d)  See  Maggs  v.  Ames,  4  Bing. 
470  ;  Conuerat  v.  Goldsmith,  6  Geor- 
gia, 14. 

(e)  See  Conn  v.  Coburn,  7  N.  Hamp. 
368. 

(/)  Harris  v.  Huntbach,  1  Burr.  373, 
and  Eeid  v.  Nash,  there  cited.  See  also 
Buckmyr  v.  Darnall,  2  Ld.  Raym. 
1085. 

ig)  Conn  v.  Coburn,  7  New  Hamp. 
368.  In  such  case  the  cause  of  action 
arises  when  the  surety  pays  the  note. 
Upon  the  point  whether  such  undertak- 
ing by  the  surety  is  original  or  colla- 
teral, Parker,  J.,  observed  :  — "  It  is 
very  clear  that  this  note  cannot  be  re- 
garded as  an  extinguishment  of  the 
debt  of  Coburn,  so  as  to  make  hira  im- 
mediately liable  to  the  plaintiff  upon  the 
giving  of  the  note.  The  debt  arose  by 
the  purchase  and  execution  of  the  note. 
That  was  the  contract,  that  he  should 
have  the  goods  on  giving  the  note.  The 
giving  of  a  note,  by  an  infant,  for  a 
debt  due  for  necessaries,  does  not  can- 
cel that  debt,  iinless  the  note  be  paid, 
(3  New  Hamp.  348) ;  and  the  giving  of 

[510] 


such  a  note,  with  a  surety,  certainly 
does  not  furnish  evidence  that  the  cre- 
ditor intended  to  discharge  the  infant 
from  all  responsibility  on  account  of 
the  demand  due  him  by  reason  of  the 
articles  furnished.  If  the  infant  is  not 
liable  on  the  note,  as  he  M-ould  not  be 
if  he  elected  to  avoid  such  liability,  an 
assumpsit  upon  the  delivery  of"  the 
goods  must  be  considered  as  subsisting 
against  him,  and  the  note  of  the  surety 
be  regarded  as  a  collateral  security  for 
the  payment.  In  this  case  nothing  was 
paid  at  the  time  by  the  plaintiff.  He 
only  became  surety  for  the  payment. 
That  was  the  contract  as  agreed  to  by 
all  the  parties.  Had  the  plaintiff'  given 
his  sole  note,  the  case  might  have  been 
different.  He  would  then  have  assumed 
the  whole  liability,  by  the  terms  of  the 
agreement,  and  the  goods  have  been 
delivered  entirely  upon  his  credit.  The 
defendant  would  have  had  no  farther 
concei'n  with  it,  and  no  right  to  interfere. 
But  that  was  not  the  case  here.  The . 
defendant  had  the  right  to  pay  and  take 
up  the  note  given  by  himself  and  the 
plaintiff,  and  he  had  this  right  only  be- 
cause he  "was  in  fact  a  debtor.  He  most 
unquestionably  had  a  right  to  pay  a 
note  upon  which  he  M'as  a  promisor. 
Suppose  he  had  paid,  whose  debt  would 
he  have  discharged?  If  the  plaintiff's 
debt,  then  he  must  have  had  a  claim 
against  the  plaintiff.  But  no  such 
claim  could  have  arisen  upon  sixcli  pay- 
ment. If  he  had  paid,  then  he  would 
have  discharged  his  own  debt.  But 
how  could  this  be,  if  his  debt  had  been 


CH.   VIII.]  GUARANTY.  495 

rantor  is  measured  by  that  of  the  princijDal,  and  will  be  so 
construed,  unless  a  less  or  a  larger  liability  is  expressly  as- 
sumed by  the  guarantor;  as  if  he  guaranteed  payment  of 
a  note  by  an  indorser,  whether  the  indorser  were  notified 
or  not. 

No  especial  words,  or  form,  are  necessary  to  constitute  a 
guaranty.  If  the  parties  clearly  manifest  that  intention,  it  is 
sufficient ;  and  if  the  guaranty  admits  of  more  than  one  in- 
terpretation, and  the  guarantee  has  acted  to  his  own  detri- 
ment with  the  assent  of  the  other  party,  as  by  advancing 
money,  on  the  faith  of  one  interpretation,  that  will  prevail, 
although  it  be  one  which  is  most  for  the  interest  of  the  gua- 
rantee, (g-)  Still  the  contract  is  construed,  if  not  strictly, 
accurately,  (A)  and  a  guaranty  of  the  notes  or  debts  of  one,  not 
only  does  not  extend  to  his  notes  given  jointly  with  ano- 
ther, (i)  but  if  that  one  varies  his  business  so  as  to  change 
his  liability  from  that  which  it  was  intended  to  guaranty,  it 
would  seem  that  the  guarantor  is  discharged,  (j)  And  the 
guarantor  who  pays  the  debt  of  his  principal  is  entitled  to 
all  the  securities  of  the  creditor ;  (k)  and  equity  will  restrain 
a  guarantee  from  enforcing  his  guaranty,  until  he  has  done 
what  is  necessary  to  turn  these  securities  to  account,  where 
he  alone  can  do  this.  (I)  So  if  the  creditor  agree  with  the 
principal  that  the  debt  shall  be  reduced  or  abated  in  a  certain 
proportion,  the  guarantor  consenting,  he  cannot  hold  the 
whole  of  the  original  guaranty,  but  must  permit  that  to  be 

paid  by  the  giving  of  the  note  itself'?  (?')    Kussell    v.    Perkins,    1    Mason, 

Had  the  defendant  paid   the  note,  no  368. 

right  of  action  would  ever  have  accrued  (j)  Id.;  Wright  v.  Eussell,  3  Wils. 

to   the   plaintiff  against   him.     Under  530,  2  Bl.  934;  Dry  u.  Davy,   10  Ad. 

such  circumstances  there  is  no  ground  &  El.  30. 

for  the  position  that  the  giving  of  the  (Jc)    Craythorne    v.    Swinburne,    14 

note  was  of  itself  a  payment  of  the  de-  Ves.  162  ;  Parsons  v.  Briddock,  2  Vera, 

fendant's  debt,  so  that  a  cause  of  action  608;    Wright  w.  Morley,    11    Ves.  12; 

arose  immediately  to  the  plaintiff  upon  Copis    v.    Middlcton,    T.    &    K.    224  ; 

its  execution  ;  and  the  jury  were  cor-  Hodgson  v.  Shaw,  3   My.  &   K.  183 ; 

rcctly  instructed  that  the  cause  of  action  Yongc  ?».  Reyncll,  15  E.  L.  &  E.  237; 

arose  when  the  defendant  paid  the  mo-  McDanicls    v.    Plower     Brook    Manf. 

ney.      Clark    v.    Foxcraft,    7    Green.  Co.  22  Verm.  286 ;  Grove  v.  Brien,  1 

348."  Maryl.  438  ;  MatheWs  v.  Aikin,  1  Comst. 

reiro,^M'p^i™'";VJr-^^'^o'  ^''^"    ^^(')  Cottin   v.  Blane,   2    Anst.    544; 
rence  v.  McCulmont,  2  How.  449.  ^y,/^,,^  „  jjutt,  3  Bro.  C  C.  326,  1  H. 

(A)  Bigelow  y.  Benton,  14  Barb.  123;     Bl.  137  ;    Wright  j;.    Simpson,  6  Ves, 
Ryan  v.  Trustees,  14  111.  20.  728. 

[511] 


496*  THE   LAW   OF   CONTRACTS.  [bOOK  III. 

abated  or  reduced  in  the  same  proportion.  (?«)  But  after 
the  guarantor  has  paid  the  debt,  he  has  no  right  to  demand 
an  assignment  to  himself  of  the  debt,  or  of  the  instrument 
which  creates  or  expresses  the  debt,  if  a  promissory  note, 
bond,  or  the  like,  for  the  very  reason  that  the  debt,  and  with 
it  the  instrument,  has  been  discharged,  and  so  made  of  no 
effect.  («) 

*  SECTION  II. 

OF  THE   CONSIDERATION. 

Although  the  promise  to  pay  the  debt  of  another  be  in 
writing,  it  is  nevertheless  of  no  force  unless  founded  upon  a 
consideration,  (o)  It  is  itself  a  distinct  contract,  and  must 
rest  upon  its  own  consideration  ;  but  this  consideration  may 
be  the  same  with  that  on  which  the  original  debt  is  founded, 
for  which  the  guarantor  is  liable.  The  rule  of  law  is  this  : 
If  the  original  debt  or  obligation  is  already  incurred  or  under- 
taken previous  to  the  collateral  undertaking,  then  there  must 
be  a  new  and  distinct  consideration  to  sustain  the  gua- 
ranty, {p)     But  if  the  original  debt  or  obligation  be  founded 

(m)  Bai'dwell  v.  Lydell,  7  Bing.  489.  the  original  debt,  no  other  considera- 
(n)  Copis  u.  Middleton,  T.  &  R.  224  ;  tion  is  necessary.  Bailey  zj.  Freeman, 
Hodgson  V.  Shaw,  3  My.  &  K.  183;  11  Johns.  221;  Hunt  i'.  Adams,  5  Mass. 
Pray  t'.  Maine,  7  Cash.  253.  But  see  358  ;  Wheelwright  i'.  Moore,  2  Hall,  143; 
Low  I.-.  Blodgett,  1  Foster,  121;  Good-  Eabaud  v.  De  "Wolf,  Paine,  580.  So 
year  v.  Watson,  14  Barb.  486  ;  Edgerly  where  the  guaranty  of  a  note  is  made 
V.  Emerson,  3  Foster,  557.  at  the  same  time  with  its  transfer,  the 
(o)  Wain  i;.  Warltcrs,  5  East,  10;  El-  transfer  is  a  sufficient  consideration  to 
liott  V.  Gicse,  7  Har.  &  J.  457  ;  Leonard  support  the  guaranty.  How  v.  Kem- 
V.  Vredenburgh,  8  Johns.  29 ;  Bailey  v.  ball,  2  McLean,  103  ;  Gillighan  v. 
Freeman,  4  Johns.  280  ;  Clark  v.  Small,  Boardman,  29  Maine,  79.  But  a  gua- 
6  Yerg.  418  ;  Aldridge  v.  Turner,  1  G.  ranty  of  payment  of  a  preexisting  pro- 
&  Johns.  427 ;  Neelson  v.  Sanborne,  2  missory  note,  where  the  only  consider- 
New  Hamp.  414  :  Tenney  v.  Prince,  4  ation  is  a  past  benefit  or  favor  confer- 
Pick.  385  ;  Cobb  v.  Page,  17  Penn.  red,  and  without  any  design  or  ex- 
469.  For  the  law  will  not,  as  a  general  pectation  of  remuneration,  is  without 
rule,  imply  a  consideration  from  the  sufficient  consideration,  and  cannot  be 
fact  that  the  agreement  was  in  wri-  enforced.  Ware  v.  Adams,  24  Maine, 
ting.     Dodge  v.  Burdell,  13  Conn.  170;  177. 

Cutler  V.  Everett,  33  Maine,  201.  (p)  llabaud  v.  De  Wolf,  Paine,  580 ; 
Forbeai-ance,  however,  is  a  good  con-  Pike  v.  Irwin,  1  Sandf.  14  ;  Elder  r. 
sideration  for  the  guaranty.  Sage  v.  Warfield,  7  Har.  &  J.  391 ;  AVare  v. 
Wilcox,  6  Conn.  81 ;  Russell  v.  Bab-  Adams,  24  JIaine,  177;  Parker  v.  Bar- 
cock,  14  Maine,  138.  And  if  the  gua-  ker,  2  Met.  423;  Anderson  v.  Davis,  9 
ranty  is  given  contemporaneously  with  Verm.  136  ;  Blake  v.  Parlin,  22  Maine, 

[512] 


CH.  VIII.]  GUARANTY.  *497 

upon  a  good  consideration,  and  at  the  time  when  it  is  incur- 
red or  undertaken,  or  before  that  time,  the  guaranty  is  given 
and  received,  and  enters  into  the  inducement  for  giving 
credit  or  supplying  goods,  then  the  consideration  for  which 
the  original  debt  is  incurred  is  regarded  as  a  consideration 
also  for  the  guaranty,  (q)  It  is  not  necessary  that  any  con- 
*  sideration  pass  directly  from  the  party  receiving  the  guaranty 
to  the  party  giving  it.  If  the  party  for  whom  the  guaranty 
is  given  receive  a  benefit,  or  the  party  to  whom  it  is  given 
receive  an  injury,  in  consequence  of  the  guaranty  and  as  its 
inducement,  this  is  a  sufficient  consideration,  (r) 

Wherever  any  fraud  exists  in  the  consideration  of  the  con- 
tract of  guaranty,  or  in  the  circumstances  which  induced  it, 
the  contract  is  entirely  null.  As  where  a  guaranty  was 
given  for  the  price  of  a  large  amount  of  iron,  and  it  was 
proved  that  the  buyer,  by  arrangement  with  the  seller,  paid 
something  more  than  the  fair  price,  which  addition  was  to 
go  towards  the  payment  of  an  old  debt,  the  contract  was  not 
enforced  as  to  so  much  of  the  price  as  would  have  been  fair, 
but  was  set  aside  as  altogether  defeated  by  the  fraud,  (rr) 


SECTION  III. 
WHETHER  A  PROMISE  IS   ORIGINAL   OR   COLLATERAL. 

It  often  happens  that  a  promise  to  pay  the  debt  of  ano- 
ther is  not  in  writing,  but  is  nevertheless  enforced  by  the  courts, 


395  ;   Bell  v.  Welch,  9  Com.  Bench,  B.  for  goods  on  credit,  and  B.  refused 

154.  to  let  him  have  them  without  security, 

((/)  Bainbridgc  u.  Wade,  1  E.  L.  &E.  on  which  A.  drew  a  promissory  note 
236;  Campbell  v.  Knapp,  15  Pcnn.  27  ;  for  the  amount,  under  which  C.  wrote, 
Klein  t,'.  Currier,  14  111.  237 ;  Bickford  "I  guarantee  the  above,"  and  the 
V.  Gibbs,  8  Cush.  156  ;  Leonard  v.  Vre-  goods  were  then  delivered.  Held,  that 
denburgh,  8  Johns.  29  ;  Graham  v.  O'-  this  was  a  collateral  undertaking  of 
Noil,  2llall,  474;  Conkey  v.  Hopkins,  C.  ;  but  that,  as  the  transaction  was 
17  Johns.  113;  Gardiner  v.  Hopkins,  5  one  and  entire,  the  consideration  pass- 
Wend.  23  ;  Rabaud  v.  DeWolf,  Paine,  ing  between  A.  and  B.  was  sufficient  to 
580.  See  How  v.  Kemball,  2  McLean,  support  as  well  the  promise  of  C.  as 
103;  Kurtz  V.Adams,  7  Eng.(  Ark.)  174.  that  of  A.,  and  no  distinct  considera- 

()•)  Bickford  v.   Gibbs,  8  Cush.  156;  tion  passing   between   B.  and   C.  was 

Morley  f .  Boothby,  3  Bing.  113,  Best,  necessary. 

C.J. ; 'Leonard J'. Vredenburgh,  S  Johns.  (rr)  Jackson    v.   Duehairc,  3  T.   R. 

29.      In  this  case   one  A.    applied   to  551  ;    Pidcock  v.  Bishop,   3   B.    &    C. 

[513] 


-497 


THE  LAW  OP   CONTRACTS. 


[book  III. 


on  the  ground  that  it  is  an  original  promise,  and  not  a  col- 
lateral one,  and  therefore  not  within  the  Statute  of  Frauds,  {s) 


605,  5  D.  &  R.  505.  And  Bayley,  J., 
in  that  case  thus  laid  down  the  law  :  — 
"  It  is  the  duty  of  a  party  taking  a  gua- 
ranty to  put  the  surety  in  possession  of 
all  the  facts  likely  to  aflfect  the  degree 
of  his  responsibility ;  and  if  he  neglect 
to  do  so,  it  is  at  his  peril.  .  .  .  The 
plaintiff,  when  he  accepted  the  guaran- 
ty, knew  that  Tickell  was  to  pay  him 
not  only  the  market  price  of  the  iron, 
hut  ten  shillings  per  ton  on  the  iron 
provided,  in  extinction  of  an  old  debt. 
The  concealment  of  that  fact  from  the 
knowledge  of  the  defendant  was  a  fraud 
upon  him,  and  avoids  this  contract. 
Where  by  a  composition  deed  the  cre- 
ditors agree  to  take  a  certain  sum  in 
full  discharge  of  their  respective  debts, 
a  secret  agreement,  by  which  the  debt- 
or stipulates  with  one  of  the  creditors 
to  pay  him  a  larger  sum,  is  void,  upon 
the  ground  that  that  agreement  is  a 
fraud  upon  the  rest  of  the  creditors.  So 
that  a  contract  which  is  a  fraud  upon  a 
third  person  may,  on  that  account,  be 
void  as  between  the  parties  to  it.  Here 
the  contract  to  guaranty  is  void,  be- 
cause a  fact  materially  affecting  the 
nature  of  the  obligation  created  by  the 
contract  was  not  communicated  to  the 
surety."  See  also  Stone  v.  Compton,  5 
Bing.  N.  C.  142.  So  it  was  held  in 
Evans  v.  Keeland,  9  Ala.  42,  that  a 
surety  may  avoid  his  contract  for  a 
fraudulent  concealment  or  misrepre- 
sentation of  facts  by  the  creditor,  to 
induce  him  to  become  surety,  although 
the  contract  for  which  he  was  bound  as 
surety  is  binding  on  his  principal.  But 
it  was  held  in  the  same  case  that  a  mis- 
representation which  will  have  this 
effect  must  be  the  false  assertion  of  a 
fact,  and  not  the  expression  of  an  opi- 
nion of  the  value  or  quality  of  the  pro- 
perty sold.  Thus  a  declaration  by  the 
vendor  that  the  land  he  was  selling  was 
as  good  or  better  than  other  tracts  to 
which  he  referred  ;  that  there  was  a 
comfortable  dwelling-house,  good  out- 
houses, peach  orchards,  &c.,  on  the 
land,  is  the  expression  of  an  opinion, 
and  not  the  assertion  of  a  fact,  the  in- 
correctness or  falsehood  of  which  would 
enable  the  surety  to  avoid  his  contract. 
So  in  Martin  v.  Striblin,  1  Speers,  23, 
it  was  held  that  it  is  no  discharge  of  a 
surety  that  he  expected,  when  he  signed 

[514] 


as  surety,  that  a  third  person  would 
also  sign  as  surety,  and  that  such  third 
person  would  receive  from  the  princi- 
pal certain  books  and  papers,  as  an  in- 
demnity for  the  suretyship  ;  unless  it  is 
shown  that  the  surety  stipulated  that 
the  paper  should  not  have  effect  until 
one  or  both  of  such  things  were  done, 
or  that  the  signature  of  the  surety  was 
obtained  by  means  of  a  fraudulent  re- 
presentation that  such  third  person 
would  sign  the  notes,  and  that  the  prin- 
cipal would  place  in  such  third  person's 
hands  his  books  and  papers,  to  be  by 
him  collected  and  applied  in  payment 
of  the  debt.  And  in  Graves  v.  Tucker, 
10  S.  &  M.  9,  it  was  decided  that  a 
fraud  practised  by  a  principal  debtor 
upon  his  surety,  in  obtaining  the  signa- 
ture of  the  surety,  does  not  discharge 
him  from  his  obligation  to  the  obligee 
of  the  bond,  unless  such  fraud  was  with 
the  knowledge  or  consent  of  the  obli- 
gee. —  So,  where  the  surety  of  a  note 
given  for  property  purchased  at  an  ad- 
ministrator's sale,  when  requested  by 
the  principal  to  sign  it,  was  told  by  the 
payee  that  his  signature  was  only  want- 
ed as  a  form  to  comply  with  the  order 
of  the  ordinary,  it  was  held  that  no 
fraud  was  thereby  practised  on  the 
surety  which  could  avoid  the  note  as  to 
him.  Smyley  v.  Head,  2  Rich.  590. 
See  also  Railton  v.  Mathews,  10  Clark 
&  Fin.  936,  and  Hamilton  v.  Watson, 
12  Clark  &  Fin.  109. 

(s)  Thus,  in  Allen  v.  Thompson,  10 
New  Hamp.  32,  the  plaintiff  had  ob- 
tained the  account  book  of  his  debtor, 
as  a  pledge  to  secure  the  debt ;  and  the 
defendant,  in  consideration  that  the 
plaintiff  would  deliver  the  book  to  one 
B.,  to  collect  the  demands,  verbally  pro- 
mised the  plaintiff  to  pay  him  the 
amount  due  from  the  debtor,  if  B. 
should  not  collect  enough  for  that  pur- 
pose. Parher,  C.  J.  "  In  cases  of  mere 
forbearance,  there  is  no  consideration 
independent  of  the  debt,  the  forbearance 
being  of  the  debt  itself;  and  it  may, 
perhaps,  be  said,  that  this  considera- 
tion, being  thus  connected  with  the 
debt,  moves  only  between  the  parties  to 
the  original  contract,  although  the  de- 
lay is  at  the  request  and  on  the  promise 
of  a  third  person.  But  in  this  case 
there  is  not  only  a  new  consideration, 


CH.  VIII.]  GUARANTY.  *  498 

The  question,  what  are  the  circumstances  which  authorize 
this  distinction,  has  been  very  much  discussed,  and  very 
*variously  decided.  The  Statute  of  Frauds  being  intended  to 
prevent  frauds,  courts  are  generally  reluctant  to  permit  it  to 
be  so  applied  as  to  work  a  fraud.  This  cannot  be  always 
prevented.  But  the  endeavor  to  prevent  it,  by  construing 
the  promise  as  original  and  not  collateral,  has  sometimes  led 
to  dicta,  and  perhaps  to  decisions  which  are  hardly  to  be 
reconciled  with  any  reasonable  interpretation  or  application 
of  the  statute.  If  we  collate  the  cases  which  relate  to  this 
question,  and  especially  those  which  seem  to  have  been  most 
carefully  considered,  we  may  draw  from  them  this  rule  ;  — 
that  where  the  promise  to  pay  the  debt  of  another  is  founded 
upon  a  new  consideration,  and  this  consideration  passes  be- 
tween the  parties  to  this  promise,  and  gives  to  the  promisor 
a  benefit  which  he  did  not  enjoy  before,  and  would  not  have 
possessed  but  for  the  promise,  then  it  will  be  regarded  as  an 
original  promise,  and  therefore  will  be  enforced,  although  not 
in  writing,  {t)  Thus,  if  the  property  of  the  debtor  be  attach- 
ed, and  the  attachment  withdrawn  at  the  request  of  the  gua- 
rantor, this  is  a  good  consideration  to  support  the  guaranty, 
but  not  enough  to  make  it  an  original  promise.  But  if  the 
property  be  not  only  relieved  from  attachment,  but  delivered 

but  one  which  is  distinct  from  and  in-  forbearance  to  enforce  payment,  is  va- 
dependent  of  the  debt;  and  the  delivery  lid,  unless  the  promise  be  in  writing, 
of  the  books  to  Bryant,  on  the  defend-  {t)  In  Tileston  v.  Nettlcton,  6  Pick, 
ant's  request,  being  in  effect  the  same  509,  it  appeared  that  the  plaintiff,  who 
as  a  delivery  to  the  defendant  himself,  was  an  innkeeper,  on  the  4th  of  July, 
this  new  consideration  passes  between  1825,  furnished  a  dinner  for  a  public 
the  parties  to  the  new  contract.  The  celebration.  He  received  his  directions 
authorities  are  clear  that  cases  of  this  from  a  committee  of  arrangements,  of 
description  are  not  within  the  statute,  which  the  defendant  was  a  member.  It 
and  no  writing  is  necessary  to  make  the  was  understood  that  every  one  who 
contract  valid."  So  in  Hilton  v.  Dins-  dined  was  to  pay  for  his  own  dinner, 
more,  21  Maine,  410,  it  was  determined  and  the  committee  were  to  incur  no 
that  if  a  promise  by  the  defendant,  to  liability.  Among  those  who  dined  was 
pay  the  previously  existing  debt  of  a  a  military  company,  called  the  Hamp- 
third  person,  be  grounded  upon  the  den  Guards,  of  wliich  the  defendant 
consideration  of  funds  placed  in  his  was  commander.  During  the  dinner 
hands  by  the  original  debtor,  with  a  the  servants  of  the  plaintiff"  came  round 
view  to  the  payment  of  this  debt,  as  to  collect  the  pay.  When  about  to  call 
well  as  upon  an  agreement  on  the  part  upon  the  Guards,  the  defendant  told 
of  the  plaintiff  to  forbear  to  sue,  it  is  an  them  they  need  not  call  upon  them,  for 
original  undertaking,  and  need  not  be  he  would  be  responsible  for  them.  The 
evidenced  by  writing.  But  it  is  denied  action  was  brought  against  the  defend- 
that  a  promise  to  pay  the  prior  debt  of  ant  to  recover  for  the  dinner  furnished 
another,  on  the  consideration  merely  of  to  the  Guards.    It  was  held  tliat  the  dc- 

[515] 


499*  THE   LAW   OF   CONTRACTS.  [BOOK  III. 

to  the  guarantor  at   his  rcqacst,  this  may  suffice  to  make  it 
an  original  promise.   (t«) 

*  The  entry  in  the  books  of  the  seller  is  often  of  great  im- 
portance in  determining  whether  a  promise  be  original  or 
collateral.  Being  made  by  the  seller,  it  is  of  course  of  far 
greater  weight  when  against  him  than  when  it  sustains  his 
claim.  Suppose  that  A.  promises  to  pay  B.,  if  B.  will  sell 
goods  which  C.  is  to  receive.  The  question  may  occur  whe- 
ther they  were  sold  to  A.  for  C.'s  benefit,  or  to  C.  on  the  gua- 
ranty of  A.  If,  on  examination  of  the  books  of  B.,  it  appears 
that  at  the  time  of  the  sale  he  charged  the  goods  to  C,  as 
sold  to  him,  it  would  be  almost  decisive  against  B.'s  claim 
against  A.  as  the  original  purchaser.  But  if  it  was  found 
that  he  had  charged  the  goods  to  A.,  it  would  still  be  open 
to  A.  to  show  that  he  had  no  right  to  do  so.  It  often  hap- 
pens that  a  seller  makes,  such  a  charge  with  a  view  of  en-- 
larging  or  asserting  his  rights,  on  the  supposition  that  this 
charge  will  suffice  to  fix  the  liability  on  the  person  against 
whom  it  is  made.  But  it  is  obvious  that  such  an  entry  can 
have  no  effect,  unless  the  circumstances  of  the  sale  show  it 
to  be  in  conformity  with  the  true  rights  and  obligations  of 
the  party.  Nor  would  an  entry  by  the  seller  to  one  party  be 
absolutely  conclusive  against  his  right  to  claim  payment  of 
another'  as  the  original  purchaser,  if  he  were  able  to  show 
clearly  that  the  entry  was  made  by  mistake,  to  one  who  was 
not  the  buyer,  and  without  any  purpose  of  discharging  him 
who  was  the  buyer,  (v)     Whether  a  contract  is  collateral  or 

fendant's  promise  was  not  an  original.  Durliam  v.  Arledge,  1  Strob.  5,  one  A. 

but  a  collateral  undertaking,  and  tliere-  held  an  execution  against  B.      C,  the 

fore  within  the  statute  of  frauds.     See,  father  of  B.,  promised  A.  that   if  he 

also,  Cahill  v.  Bigelow,  18  Pick.  3G9.  would  delay  enforcing   the   execution, 

(it)  Nelson  v.  Boynton,  3  Met.  39G,  he  would  pay  him  $100  in  cash,  and  the 

where  this  point  is  discussed  at  much  balance  in  one  year.     The  promise  not 

length  and  with  great  force,  by  Shaiv,  being  in  writing,  this  mere  suspension 

C.  J.;    Skelton  v.  Brewster,   8  Johns,  of  the  plaintiff's  legal   right  was  held 

376;    Stanly   v.  Hendricks;  13  Ire.  L.  not  to  constitute  such  a  new  and  inde- 

86  ;    Handle   v.   Harris,  6  Yerg.  508.  pendent   consideration   as   would   give 

In  this  last  case  a  sheriflF  levied  an  execu-  effect  to  the  promise  to  pay  the  debt  of 

tion  upon  the  property  of  the  defendant  another,  as  an  original  contract.     See 

in  the  possession  of  a  third  person,  and  also  Tindal  v.  Touchberry,  3  Strob.  L. 

such  third  person  agreed  verbally  if  the  177  ;  Blount  v.  Hawkins.  19  Ala.  100. 
sheriff  would  release   the   property  he         (v)  In  Matthews  v.  Milton,  4  Yerg. 

would   pay  the  execution.     Utici,  tkat  576,  it  appeared  that  A.  and  B.  being 

this  agreement  was  binding  in  law  and  in  the  plaintiffs'  store  together,  A.  told 

not  witliin   the   statute   of  frauds.     In  the  plaintiffs  he  would  pay  for  any  arti- 

[516] 


CH.   VIII.]  GUARANTY.  *500 

original,  may  be  a  question  of  construction^  and  then  it  is  for 
the  court ;  but  it  is  often  regarded  as  a  question  of  fact,  and 
then  it  is  for  the  jury,  {vv) 

Sales  by  a  factor,  with  a  guaranty  of  the  price  from  the 
factor  to  the  owner,  are  common  in  all  commercial  coun- 
tries. In  Europe  they  are  commonly  called  "  del  credere  " 
*  contracts;  and  the  commission  charged  by  the  factor,  and 
intended  to  cover  not  only  his  services  in  selling,  but  his  risk 
in  insuring  the  payments,  is  called  a  "  del  credere  commis- 
sion," as  we  have  remarked  before  ;  but  this  phrase  is 
seldom  used  here,  although  this  kind  of  contract  is  very 
common.  It  is,  in  one  sense,  a  promise  to  pay  the  debt  of 
another ;  and  it  has  been  said  by  English  courts  that  it  must 
be  in  writing,  [w]  We  doubt,  however,  whether  this  doc- 
trine would  be  held  in  England  now;  {ww)  and  so  far  as 
the  question  has  been  adjudicated  in  this  country,  it  has  been 
held,  as  we  have  already  stated,  to  be  an  original  promise, 
and  therefore  enforceable  at  law,  although  not  in  writing,  (x) 
The  promisor  in  fact  receives  a  direct  consideration  for  this 
precise  promise,  from  the  promisee. 

SECTION  IV. 

OF   THE   AGREEMENT   AND   ACCEPTANCE. 

The  contract  of  guaranty,  like  every  other  contract,  implies 
two  parties,  and  requires  the  agreement  of  both  parties  to 

cle  B.  might  take  up,  and  B.  thereupon  tlewell,  1   Gill,  260;  Hopkins  v.  Kich- 

purchased    several  articles,   which   the  ardson,  9  Grattan,  485 ;  Cutler  v.  Hin- 

plaintiffs  charged  to  A.  and  B.     Held,  ton,  6  Rand.  509  j  Leland  v.  Creyon,  1 

that  the  promise  of  A.  was  within  the  McCord,  100. 

statute  of  frauds,  as  being  a  promise  to        (,^.y)  g^e   Sinclair  v.  Richardson,  12 

pay  the  debt  of  B.     Aliter,  if  the  arti-  Vcrm.  33  :  Flanders  v.  Crolius,  1  Duer, 

cles  had  been  charged  to  A.  alone,  for  206. 

then  it  would  not  have  been  B.'s  debt.         /    \  rn  •**  n     l      ..      ,^,-011 

See,  also,  Gardiner  ..  Hopkins,  5  Wend.         ff  9'n!   {  Mn.  .  o'-q    ''   ^  ^  '  ^^^^ 

23;   Graham  ..  O'Niel,  2    Hall,   474;  f- Comber,  1  Moore  2.9. 
Porter  v.  Langhorn,  2  Bibb,  63  ;  Fland-         (''"^")  Smce   the   first  edition  of  this 

ers  V.  Crolius,  1  Duer,  206.     But  where  volume  was  published,  the  Court  of  Ex- 

A.   requested   B.  to  sell  goods  to  C,  chequer  have  decided    in    Couturier  v.  ■ 

promising  by  parol  to  indorse  C.'s  note  Hastie,  16  E.  L.  &  E.  562,  tiiat  such 

for  the  price",  it  was  held  that  this  pro-  agreement  by  a  factor  is  not  within  the 

mise  was  within  the  statute  of  frauds,  statute  of  frauds,  as  being  a  promise  to 

and  therefore  void.     Carville  v.  Crane,  answer  for  the  default  of  another. 
5  Hill,  483.     See  also  Conolly  v.  Ket-         (x)  See  ante,  p.  78,  n.  (t,)  el  seq. 
VOL.  I.                               44  [517] 


501*  THE  LAW   OF   CONTRACTS.  [BOOK  III. 

make  it  valid.  In  other  words,  a  promise  to  pay  tiie  debt 
of  another  is  not  valid,  unless  it  is  accepted  by  the  promi- 
see, (y)  Language  is  sometimes  used  by  courts  and  legists 
which  might  seem  to  mean  that  there  were  cases  of  guaranty 
which  need  not  be  accepted ;  but  this  is  not  accurate ;  there 
are  cases  in  which  this  acceptance  is  implied  and  presumed ; 
but  there  must  be  acceptance  or  assent,  express  or  implied, 
or  there  can  be  no  contract.  The  true  questions  are,  when 
must  this  acceptance  be  express  and  positive,  and  in  what 
way  and  at  what  time  must  it  be  made,  when  an  express 
acceptance  is  necessary.  And  these  questions  have  some- 
times been  found  to  be  very  difficult.  If  one  goes  *  with  a 
purchaser,  and  there  says  to  the  seller,  "  furnish  him  with  the 
goods  he  wishes,  and  I  will  guaranty  the  payment,"  and  the 
seller  thereupon  furnishes  the  goods,  this  would  be  a  sufficient 
acceptance  of  the  guaranty,  and  a  sufficient  notice  to  the 
guarantor.  All  the  parts  of  the  transaction  would  be  con- 
nected, and  could  leave  no  doubt  as  to  its  character.  But  if 
the  guaranty  were  for  a  future  operation,  perhaps  for  one  of 
uncertain  amount,  and  offered  by  letter,  there  should  then, 
according  to  the  weight  of  authority,  be  a  distinct  notice  of 
acceptance,  and  also  a  notice  of  the  amount  advanced  upon 
the  guaranty,  unless  that  amount  be  the  same  that  is  specified 
in  the  guaranty  itself,  (z)     The  reason  of  this  is,  that  the 

iy)  Mozley  v.  Tinkler,  1  C.  M.  &  K.  Barr,  320  ;  Cremer  v.  Higginson,  1  Ma- 

692 ;  Mclver  v.  Richardson,  1  M.  &  S.  son,  323 ;  Howe  v.  Nickels,  22  Maine, 

557.     A  mere  overture  or  offer  to  gua-  175;  Hill   v.    Calvin,   4    How.    [Miss.] 

ranty  is  not  binding  unless  accepted.  231;  Taylor  v.  Wetmore,  10  Ohio,  490; 

Chitty  on  Cont.  437,  n.  (1);  Caton  v.  Lawson  v.  Townes,  2  Ala.  373;  Mus- 

Shaw,  2  Harr.  &  Gill,  13;  Menard  v.  sey  v.  Rayner,  22  Pick.  223;  Wildes  v. 

Scudder,  7  Louis.  Ann.  385.  Savage,  1  Story,  22.     This  notice  must 

(z)  We  have  already  considered  this  be  given  in  a  reasonable  time  after  it  is 
subject  somewhat  in  our  chapter  on  accepted.  lb.  Notice  of  the  accept- 
assent.  See  p.  402,  and  notes.  Tlie  ance  is  not  necessary,  however,  where 
modern  cases  have  quite  generally  estab-  the  acceptance  is  cotemporaneous  with 
lished  the  doctrine,  that  where  the  pro-  the  guaranty.  Wildest.  Savage,  1  Story, 
position  to  guarantee,  or  letter  of  credit,  22;  Bleeker  v.  Hyde,  3  McLean,  279. 
is  future  in  its  application,  and  uncer-  In  New  Haven  County  Bank  v.  Mitch- 
tain  in  its  amount,  the  guarantor  must  ell,  15  Conn.  206,  where  A.  executed  a 
have  notice  that  his  guaranty  is  ac-  writing,  whereby  he  agreed  with  B.  for 
cepted,  and  that  goods  are  delivered  A'alue  received,  that  he.  A.,  would,  at 
upon  it.  Lee  v.  Dick,  10  Pet.  482;  all  times,  hold  himself  responsible  to  B. 
Adams  v.  Jones,  12  Pet.  207;  Norton  to  a  limited  amount,  for  such  paper  as 
V.  Eastman,  4  Greenl.  (Bennett's  ed.)  might  be  indorsed  by  C.  and  holden  by 
521 ;  Tuckerman  v.  French,  7  Greenl.  B.  within  the  amount  specified,  without 
(Bennett's  ed.)  115  ;  Kay  v.  Allen,  9  notice  to  be  given  to  A.  by  B.,  and  such 

[518] 


CH.  VIII.] 


GUARANTY. 


502 


guarantor  may  know  distinctly  his  liability,  and  have  the 
means  of  arranging  his  relations  as  he  would  with  the  party 
in  whose  favor  the  guaranty  is  given,  and  take  from  him 
security  or  indemnity.  From  the  reason  of  the  thing  we 
may  state  the  rule  to  be,  that  every  guarantor  must  have 
this  opportunity ;  and  unless  the  transaction  is  such  that  of 
itself  it  gives  him  all  the  knowledge  he  needs,  at  a  proper 
time,  then  this  knowledge  must  be  given  him  by  specific 
notice. 


writing  was  simultaneously  delivered  by 
A.  and  accepted  by  B.,  and  B.  on  the 
credit  thereof  discounted  paper  indorsed 
by  C. ;  it  was  held,  1st,  that  no  other  ac- 
ceptance by  B.  or  notice  thereof  to  A. 
was  necessary  to  perfect  the  obligation 
of  A. ;  2d,  that  no  notice  to  A.  of  the 
amount  of  credit  given  by  B.  on  the 
paper  indorsed  by  C.  was  necessary, 
this  being  expressly  dispensed  with  by 
the  terms  of  the  contract. —  Some  au- 
thorities hold  that  not  only  must  the 
guarantor  have  reasonable  notice  of  the 
acceptance  of  his  guaranty,  but  also  of 
the  amount  of  goods  delivered  upon  it, 
and  that  payment  for  the  same  has  been 
demanded  of  the  original  debtor.  Howe 
V.  Nickels,  22  Maine,  175.  So  in  Clark 
V.  Remington,  11  Met.  361,  R.  by  his 
guaranty  engaged  to  pay  C  for  goods 
which  C.  might,  from  time  to  time,  sell 
and  deliver  to  D.  C.  accepted  the  gua- 
ranty, and  R.  had  notice  that  it  was 
accepted.  C.  delivered  one  parcel  of 
goods  to  D..  for  which  D.  seasonably 
paid.  In  September,  1842,  C.  deliver- 
ed other   goods    to  D.,  and  in  March, 

1843,  took  D.'s  note  therefor,  payable  in 
twenty  days,  which  was  never  paid.  In 
June,  1843,  D.  was  in  business,  and  had 
property  sufficient  to  pay  C.     In  April, 

1844,  D.  was  discharged  from  his  debts 
under  the  insolvent  laws,  but  paid  no 
dividend,  and  C.  did  not  prove  his 
claim  against  him  under  the  proceed- 
ings in  insolvency.  C.  gave  R.  no  no- 
tice of  the  credit  which  he  had  given  to 
D.,  nor  of  the  state  of  D.'s  accounts 
witli  him,  nor  of  D.'s  failure  to  meet  his 
payments,  until  the  1st  of  January,  1845, 
when  he  demanded  payment  from  R. 
of  the  amount  due  to  him  from  D. 
Ildd,  that  R.  was  discharged  from  his 
liability  on  the  guaranty  by  C-'s  omis- 
sion to  give  him  seasonable  notice  of 
the  amount  due  from  D.,  and  of  D.'s 


failure  to  pay  it.  Sec  also  McGuire  v. 
Newkirk,  1  Eng.  [Ark.]  142.  In  Craft 
V.  Isham,  13  Conn.  28,  the  facts  were 
that  in  April,  1832,  A.  gave  B.  a  writing, 
guaranteeing  the  payment  to  B.  of  goods 
which  he  should  sell  to  C,  to  the 
amount  of  $1,000,  if  C.  should  fail  to 
pay  at  the  end  of  three  years.  C.  was 
the  son-in-law  of  A.,  and  A.  daily  pass- 
ed C.'s  store,  and  occasionally  pur- 
chased goods  there.  B.  furnished  C. 
goods,  to  the  amount  of  about  $1,000, 
between  the  said  April  and  November 
following,  on  a  credit  of  four  months, 
the  last  credit  expiring  on  the  10th  of 
March,  1833.  In  November,  1834,  C. 
became  insolvent,  and  never  paid  for 
the  goods.  No  notice  was  at  any  time 
given  to  A.  of  the  acceptance  of  the 
guaranty  by  B.,  nor  was  any  notice 
given  to  him  of  the  amount  of  the  debt 
due  from  C.  for  the  goods,  until  No- 
vember, 1835.  In  an  action  by  B. 
against  A.  on  the  guaranty,  it  was 
held,  that  the  defendant  was  entitled 
to  notice,  within  a  reasonable  time,  of 
the  acceptance  of  the  guaranty  by  the 
plaintiff,  and  of  the  amount  of  the  goods 
furnished  under  it,  and  that  the  notice 
given  in  this  case  was  not  within  a  rea- 
sonable time.  In  New  York,  however, 
in  the  case  of  Douglass  v.  Rowland,  24 
Wend.  35,  the  court  say,  "  Unless  there 
is  something  in  the  nature  of  the  con- 
tract or  terms  of  the  writing,  creating  or 
implying  the  necessity  of  acceptance  or 
notice  as  a  condition  of  liability,  neither 
are  deemed  requisite."  And  in  Union 
Bank  r.  Coster's  Exrs.  3  Comstock,  212, 
the  court  referring  to  Douglass  v.  How- 
land  and  Smith  v.  Dann,  6  Hill.  543, 
say,  "  We  must  hold  the  law  to  be 
settled  in  this  State,  that  where  the 
guaranty  is  absolute  no  notice  of  ac- 
ceptance is  necessary." 

[519] 


503  *  THE  LAW   OF  CONTRACTS.  [BOOK  HI. 

As  to  the  manner  of  the  notice,  no  cases  have  prescribed 
any  special  form,  (a)  nor  is  the  time  precisely  determined. 
But  the  notice  must  be  given  in  a  reasonable  time;  and  that 
time  will  be  reasonable  which  secures  to  the  guarantor  all 
rights  and  means  of  protecting  himself,  (b) 


SECTION  V. 

OF   THE   CHANGE   OF   LIABILITY. 

The  guarantor  cannot  be  held  to  any  greater  extent  than 
the  original  debtor,  either  in  point  of  amount  or  of  time,  (c) 
*  Nor  can  this  liability  be  extended  or  enlarged  by  operation 
of  law  without  his  consent.  This  would  appear  to  be  a  plain 
and  certain  principle  of  law,  although  there  are  some  cases 
which  seem  to  oppose  it.  (d)  If  one  becomes  bound  for  the 
fidelity  of  an  officer  in  a  corporation  created  by  a  statute  for 
a  limited  period,  and  after  that  expires  the  charter  is  renewed, 
but  no  new  bond  given,  and  no  confirmation  of  the  old  one, 
it  has  been   held  in  New  Hampshire  that  the  surety  is  still 

(a)  It  is  immaterial  how  the  notice  Salmon,  1  Cala.  413.  The  liability  of 
is  given  to  the  guarantor,  whether  by  the  guarantor  will  be  deemed  coexten- 
the  party  accepting  the  guaranty,  or  sive  with  thatof  the  principal,  unless  it  be 
him  in  whose  favor  it  is  given.  Reason-  expressly  limited.  Curling  v.  Chalklen, 
able  knowledge  on  the  part  of  the  guaran-  3  M.  &  S.  502.  A  guarantor  is  not 
tor  that  his  guaranty  is  accepted  is  suffi-  bound  beyond  the  fair  import  of  the 
cient.  Oakes  v.  Weller,  16  Verm.  63,  actual  terms  of  his  engagement.  Mil- 
13  Verm.  106;  Menard  v.  Scudder,  7  ler  v.  Stewart,  9  Wheat.  680,  720; 
Louis.  Ann.  385.  An  acknowledgment  Wardens  of  St.  Saviour's  v.  Bostock, 
by  the  guarantor  of  his  liability,  and  a  5  B.  &  P.  175;  Borden  v.  Houston,  2 
promise  to  pay,  supersedes  the  necessity  Tex.  594. 

of  proving  notice.    Peck  v.  Barney,  13  (d)  Thus,  in  Reed  v.  rullum,2  Pick. 

Verm.  93.     But  see  Reynolds  v.  Doug-  158,  where  a  surety  became  bound  for 

lass,  12  Pet.  497.  a  poor  debtor,  "that  he  would  not  de- 

(b)  What  is  a  reasonable  time,  the  part  without  the  exterior  bounds  of  the 
facts  not  being  in  dispute,  seems  to  be  debtor's  liberties,"  and  at  the  time  the 
entirely  a  question  of  law,  and  not  pro-  bond  was  given  the  ''  debtor's  liberties  " 
per  to  be  submitted  to  the  jury.  Craft  extended  through  the  whole  county, 
I'.  Isham,  13  Conn.  28 ;  Howe  v.  Nick-  but  they  were  subsequently  reduced  to 
els,  22  Maine,  175;  Lowry  D.Adams,  much  more  narrow  limits,  it  was  held 
22  Verm.  160.  that  the  surety  was  liable  for  the  escape 

(c)  Walsh  V.  Bailie,  10  Johns.  180;  of  the  debtor,  beyond  the  last  mentioned 
Tunison  v.  Cramer,  2  South.  498  ;  limits,  although  he  had  not  passed  be- 
Clark  V.  Bush,  3  Cow.  151  ;  United  yond  the  liberties  as  they  existed  when 
States  V.  Boyd,  15  Pet.  187;  Pisher  u.  the  bond  was  given. 

[520] 


CH.   VIII.] 


GUARANTY. 


^504 


bound,  (e)  But  this  question  has  been  decided  differently, 
*  and  more  in  accordance  with  the  principles  of  the  law  of  con- 
tracts, in   Maryland.  (/)     There  the  surety  was  held  to  be 


(e)  Exeter  Bank  v.  Rogers,  7  New 
Hamp.  21.  The  facts  were  that  the 
Exeter  Bank  was  incorporated  b}'  an 
act  of  the  legislature,  in  the  year  1803, 
to  continue  for  the  term  of  twenty  years 
from  January  1,  1804.  In  1822  an  ad- 
ditional act  of  the  legislature  was  passed, 
which  provided  that  the  first  act  should 
remain  and  continue  in  force  for  a  fur- 
ther term  of  twenty  years  from  January 
1, 1824  :  that  there  should  be  no  division 
of  the  capital  stock  without  the  consent 
of  the  legislature,  and  that  the  bank 
should  not  have  in  circulation  at  any 
time  bills  exceeding  in  amount  the 
capital  stock  actually  paid  ;  any  cashier 
or  other  officer  violating  these  provi- 
sions to  forfeit  not  less  than  $1,000,  nor 
more  than  $10,000.  R.  was  appointed 
cashier  of  the  bank  in  1809,  gave  bond 
with  sureties  for  the  faithfiil  discharge 
of  the  duties  of  the  office,  and  continued 
cashier  until  1830.  It  was  held  that  the 
bond  covered  all  the  time  which  R.  re- 
mained in  office,  and  that  the  sureties 
were  not  discharged  by  any  of  the  pro- 
visions in  the  additional  act  of  the 
legislature.  And  Richardson,  C.  J.,  in 
giving  the  opinion  of  the  court,  ob- 
served :  —  "  The  true  rules  of  law  to  be 
deduced  from  all  the  cases  on  this  sub- 
ject, are  these.  When  the  term  of  office 
is  limited  to  a  particular  period,  as  a 
year  or  five  years,  and  the  person  ap- 
pointed cannot  continue  in  office  for  a 
longer  period  without  a  new  appoint- 
ment, then  the  official  bond,  if  nothing 
appear  to  the  contrary,  is  presumed  to 
be  intended  to  be  confined  to  the  par- 
ticular term  ;  and  if  the  officer  be  re- 
appointed there  must  be  a  new  bond. 
But  when  an  office  is  held  at  the  will  of 
those  who  make  the  appointment,  and 
is  not  limited  to  any  certain  term,  then 
the  bond  is  presumed  to  be  intended,  if 
nothing  appear  to  the  contrary,  to  cover 
all  the  time  the  person  appointed  shall 
continue  in  office  under  the  appoint- 
ment. Thus  a  sheritr  is  appointed  in 
this  State  to  hold  his  office  during  the 
terra  of  five  years,  and  cannot  hold  it 
beyond  that  term  witliout  a  new  ap- 
pointment. The  bond  he  gives  docs 
not  therefore  extend  beyond  the  term 
for  which  he  is   appointed.     But  the 

44* 


deputies  of  the  sheriff  hold  their  offices 
at  the  will  of  the  sheriff,  and  their  bonds 
may  extend  to  any  period  during  which 
they  arc  continued  in  office,  notwith- 
standing the  sheriff  may  in  the  mean 
time  be  re-appointed,  and  be  compelled 
to  give  new  bonds  himself.  These  rules 
arc  founded  in  sound  reason  and  good 
sense.  The  presumption  which  the  law 
makes  as  to  the  intention  of  the  parties 
to  the  bond  is  the  natural  presumption 
in  both  cases.  Now  we  are  of  opinion 
that  the  terms  of  the  condition  in  this 
case  are  broad  enough  to  embrace  the 
whole  term  during  which  Rogers  was 
cashier,  and  that  there  is  nothing  in  the 
form  of  the  appointment,  the  nature  of 
the  office,  the  words  of  the  condition,  or 
the  conduct  of  the  parties,  that  gives 
the  slightest  indication  of  any  intention 
in  any  party  that  the  bond  should  be 
limited  to  the  period  mentioned  in  the 
original  charter  as  the  termination  of 
the  corporation." 

(/)  Union  Bank  v.  Ridgely,  1  Ilarr. 
&  Gill,  324,  which  was  an  action  against 
the  sureties  of  a  cashier  for  the  faithful 
performance  of  his  duties.  The  charter 
of  the  bank  expired,  and  was  extended 
by  a  new  act  of  the  legislature.  The 
alleged  default  of  the  cashier  occurred 
after  the  reenactment  of  the  charter. 
The  court  held  that  where  an  act  of  in- 
corporation, under  which  a  bond  was 
taken  to  secure  the  good  conduct  of  one 
of  the  officers  of  the  corporation,  was 
limited  in  its  duration  to  a  certain  period, 
the  bond  must  have  the  same  limitation  ; 
because,  the  parties  looking  to  that  act, 
it  would  seem  to  be  very  clear  that  no 
responsibility  was  contemplated  beyond 
tlie  period  of  its  specified  existence. 
The  extension  of  the  charter  beyond 
the  period  of  its  first  limitation  by  legis- 
lative authority  docs  not  enter  into  the 
contract,  and  cannot  enlarge  it.  See 
S.  C.  Society  v.  Johnson,  1  McCord, 
41.  In  the  late  case  of  Bamford  v. 
lies,  3  Exch.  380,  a  bond,  reciting  that 
A.  was  appointed  assistant  overseer  of 
the  parish  of  M.,  was  conditioned  for 
tlie  due  performance  of  his  duties, 
"  thenceforth  from  time  to  time,  and  at 
all  times,  so  long  as  he  should  continue 
in   such   office."      On   the  25th  June, 

[521] 


505 


THE  LAW   OF   CONTRACTS. 


[book  in. 


discharged,  on  the  ground  that  his  liability  was  exactly  de- 
fined when  he  assumed  it,  and  could  not  be  enlarged  or  varied 
without  his  consent,  either  by  the  party  receiving  the  guaranty 
or  by  the  operation  of  law. 

The  Supreme  Court  of  the  United  States  have  taken  strong 
ground  upon  this  point.  They  have  decided  that  the  surety 
is  discharged  not  merely  by  payment  of  the  debt  .or  a  release 
of  the  principal,  but  by  any  material  change  in  the  relations 
between  the  principal  and  the  party  to  whom  he  owes  a  debt 
or  duty ;  and  that  the  surety  cannot  be  held  in  such  case  by 
showing  that  the  change  was  not  injurious  to  him.  For  he 
had  a  right  to  judge  for  himself  of  the  circumstances  under 
which  he  was  willing  to  be  liable,  and  to  stand  upon  the  very 
terms  of  his  contract,  (g) 

*  Any  thing,  therefore,  which  operates  as  a  novation,  dis- 
charges the  surety.     So  if  a  new  note  be  given  in  discharge  of 


1840,  a  vestry  meeting  was  held,  at 
■which  A.  was  elected  assistant  overseer 
until  the  25th  INIarch,  1841,  at  a  salary 
of  Sd.  iu  the  pound  on  some  sums  col- 
lected, and  4c?.  on  others.  Two  jus- 
tices, by  their  warrant,  dated  9th  July, 
1840,  reciting  the  vestry  resolution,  and 
that  his  salary  had  been  fixed  for  the 
execution  of  his  office  until  the  25th 
March  then  next,  stated,  that  in  pursu- 
ance of  the  59  Geo.  3,  c.  12,  they  ap- 
pointed him  assistant  overseer.  On  the 
25th  March,  1841,  he  was  again  elected 
to  the  same  office,  at  a  salary  of  £50 
per  annum,  and  was  re-appointed  by  the 
,  justices,  and  he  continued  to  be  so  re- 
elected and  re-appointed  by  the  justices 
until  March,  1846.  On  ceasing  to  hold 
office,  he  retained  moneys  in  his  hands. 
Held,  that  the  sureties  were  not  liable 
on  the  bond.  See  also  Mayor  of  Ber- 
wick-upon-Tweed V.  Oswald,  16  E.  L. 
&  E.  236  ;  Frank  v.  Edwards,  16  E.  L. 
&  E.  477  and  note  ;  Jamison  v.  Cosby, 
11  Humph.  273. 

(g)  Miller  v.  Stewart,  9  Wheat.  680. 
In  tins  case  a  bond  was  given,  condi- 
tioned for  the  faithful  performance  of 
the  duties  of  the  office  of  deputy  col- 
lector of  direct  taxes  for  eight  certain 
townships,  and  the  instrument  of  the 
appointment,  referred  to  in  the  bond, 
was  afterwards  altered,  so  as  to  extend 

[522] 


to  another  township,  without  the  con- 
sent of  the  sureties.  The  court  held 
that  the  surety  was  discharged  from  his 
responsibility  for  moneys  subsequently 
collected  bj-  his  principal.  See  also, 
United  States  r.  Tillotson,  Paine,  305  ; 
United  States  v.  Hillegas,  3  Wash.  C. 
C.  R.  70 ;  Postmaster  General  v.  Ree- 
der,  4  Id.  678.  In  the  late  case  of  Bo- 
nar  v.  McDonald,  3  House  of  Lords 
Cases,  226,  1  E.  L.  &  E.  1,  in  the 
House  of  Lords,  the  facts  were,  that  in 
a  bond  by  cautioners  (sureties)  for  the 
careful  attention  to  business  and  the 
faithful  discharge  of  the  duties  of  an 
agent  of  a  bank,  it  was  provided  "  that 
.he  should  have  no  other  business  of  any 
Kind,  nor  be  connected  in  any  shape 
with  any  trade,  manufacture,  or  mer- 
cantile copartnery,  nor  be  agent  for  any 
individual  or  copartnery  in  any  manner 
or  way  whatsoever,  nor  be  security  for 
any  individual  or  copartnery  in  any  man- 
ner or  way  whatsoever."  The  bank  sub- 
sequently, without  the  knowledge  of  the 
sureties,  increased  the  salary  of  the 
agent,  he  undertaking  to  hear  one  fourth 
part  of  all  losses  which  might  be  incun-ed 
by  his  discounts.  Held,  affirming  the 
decision  of  a  majority  of  the  court  be- 
low, that  this  was  such  an  alteration  of 
the  contract,  and  of  the  liability  of  the 
agent,  that  the  sureties  were  discharged, 


CH.  VIII.] 


GUARANTY. 


506 


a  former  one;  (h)  and  it  has  been  adjudged,  upon  good  rea- 
sons, that  where  a  surety  is  in  fact  discharged  by  a  novation, 
or  by  a  material  change  of  the  debt,  and  in  ignorance  of  his 
being  thus  freed  from  his  liability  makes  a  subsequent  ac- 
knowledgement of  his  liability,  he  cannot  be  held  thereon,  (i) 
But  the  guarantor  may  assent  to  the  change,  and  waive  his 
right  of  claiming  a  discharge  because  of  it.  (j) 

In  general,  a  guaranty  to  a  partnership  is  extinguished  by 
a  change  in  the  firm,  although  the  copartnership  name  is  not 
changed,  (k)     This  has  been  held  to  be   the  effect  of  *such 


notwithstanding  that  the  loss  arose,  not 
from  discounts,  but  from  improper  con- 
duct of  the  agent. 

(h)  Burge  on  Suretyship,  B.  2,  ch.5; 
Letcher  v.  Banlc  of  The  Common- 
weahh,  1  Dana,  82 ;  Castleman  v. 
Holmes,  4  J.  J.  Marsh.  1 ;  Bell  v.  Mar- 
tin, 3  Harr.  1G7  :  Farmers  and  Mechan- 
ics Bank  v.  Kerchcval,  2  Mich.  504. 

(«■)  Merrimack  Co.  Bank  v.  Brown, 

12  New  Harap.  320;  Fowler  v.  Brooks, 

13  New  Hamp.  240.  See  also  Roe  r. 
Harrison,  2  T.  R.  425. 

{j)  Fowler  v.  Brooks,  13  New  Hamp. 
240.  In  this  case  it  was  determined 
that  if  a  surety,  with  knowledge  of  the 
fact  that  an  agreement  for  an  exten- 
sion of  time  has  been  made  between 
the  creditor  and  the  principal,  make  a 
new  promise  to  pay  the  debt,  he  cannot 
afterwards  avail  himself  of  the  agree- 
ment, as  a  discharge  of  his  liability, 
notwithstanding  there  was  no  new  con- 
sideration for  his  promise. 

(k)  Bcllairs  v.  Ebsworth,  3  Camp. 
52 ;  Russell  v.  Perkins,  1  Mason, 
368 ;  Weston  v.  Barton,  4  Taunt.  673. 
It  was  here  held  that  a  bond  condition- 
ed to  repay  to  five  persons  all  sums  ad- 
vanced by  them,  or  any  of  them,  in 
their  capacity  of  bankers,  will  not  ex- 
tend to  sums  advanced  after  the  de- 
cease of  one  of  the  five  by  the  four  sur- 
vivors, the  four  then  acting  as  bankers. 
Mansfield,  C.  J.,  observed: — '-The 
question  here  is,  whether  the  original 
partnership  being  at  an  end,  in  con- 
sequence of  the  death  of  Golding,  the 
bond  is  still  in  force  as  security  to  the 
surviving  four ;  or  whether  that  politi- 
cal personage,  as  it  may  be  called,  con- 
sisting of  five,  being  dead,  the  bond  is 
not  at  an  end From 


almost  all  the  cases,  in  truth  we  may 
say  from  all,  (for  though  there  is  one 
adverse  case  of  Barclay  v.  Lucas,  the 
propriety  of  that  decision  lias  been  very 
much  questioned,)  it  results  that  where 
one  of  the  obligees  dies,  the  security  is 
at  an  end.  It  is  not  necessary  now  to 
enter  into  the  reasons  of  those  deci- 
sions, but  there  may  be  very  good  rea- 
sons for  such  a  construction  ;  it  is  very 
probable  that  sureties  may  be  induced 
to  enter  into  such  a  security  by  a  confi- 
dence which  they  repose  in  the  integrity, 
diligence,  caution,  and  accuracy  of  one 
or  two  of  the  partners.  In  the  nature 
of  things  there  cannot  be  a  partnership 
consisting  of  several  persons,  in  wliich 
there  are  not  some  persons  possess- 
ing these  qualities  in  a  greater  de- 
gree than  the  rest ;  and  it  may  be  that 
the  partner  dying,  or  going  out,  may 
be  the  very  person  on  whom  the  sure- 
ties relied ;  it  would  therefore  be  very 
unreasonable  to  hold  the  surety  to  his 
contract,  after  such  chatige."  See  also 
Bodenham  v.  Purchas,  2  B.  &  Aid.  39. 
But  in  New  Haven  County  Bank  v. 
Mitchell,  15  Conn.  206,  the  facts  were 
as  follows.  The  guaranty  of  A.,  by  its 
terms,  made  him  responsible  to  B.,  a 
banking  institution,  for  such  paper  as 
should  l)e  indorsed  by  the  firm  of  S.  M. 
&  G.,  and  held  by  B.,  and  bound  A.  to 
save  B.  harmless  from  all  loss  which 
B.  might  sustain  by  reason  of  holding 
paper  indorsed  by  said  firm.  The  part- 
nership of  8.  M.  «fc  G.  was  afterwards 
dissolved,  of  which  B.  had  notice.  The 
partners  then  executed  a  power  of  at- 
torney to  M.,  who  had,  previously  to 
the  dissolution,  transacted  neaily  all  the 
bank  business  of  the  partnership  with 
B.,  authorizing  hira  to  sign  and  indorse 

[523] 


507^ 


THE   LAW   OF   CONTRACTS. 


[book  III. 


change,  although  the  guaranty  given  to  the  firm  was  expressly 
for  "  advances  by  them,  or  either  of  them."  The  m-ere 
fact  that  the  partnership  is  very  numerous  does  not  seem 
to  vary  this  rule,  if  the  guaranty  be  given  to  the  whole  firm. 
*But  where  the  partnership  was  numerous,  and  seven  of  the 
members  were  trustees  for  the  firm,  and  a  bond  was  given 
to  these  trustees  to  secure  the  faithful  services  of  the  clerk  of 
the  company,  and  a  part  of  the  trustees  died,  there  it  was 
held  that  the  surviving  trustees  might  maintain  an  action  on 
the  bond,  although  it  was  shown  that  there  had  been  changes 
in  the  company.  (/) 

A  guaranty  may  doubtless  be  a  continuing  contract,  and 
be  unaffected  by  a  change  of  circumstances,  as  to  the  sub- 
ject-matter, and  also  as  to  the  parties  for  whose  benefit  it 
shall  enure.  It  may  provide,  for  instance,  for  the  fidelity  of 
a  cashier  in  a  bank,  as  long  as  it  shall  continue  under  its 


notes  which  might  be  considered  neces- 
sary in  the  management  of  the  concern. 
M.  delivered  the  power  to  B. ;  after 
which,  M.,  by  virtue  thereof,  continued 
to  use  the  name  of  S.  M.  &  G.,  as  draw- 
ers and  indorsers  of  negotiable  paper, 
which  was  discounted  by  B.,  and  the 
proceeds  credited  to  the  firm,  and  ap- 
plied in  payment  of  their  former  in- 
debtedness to  B.  By  virtue  of  such 
power,  M.  also  signed  in  the  name  of 
the  firm  various  other  notes  which  were 
indorsed  by  A.,  with  notice  of  the  disso- 
lution, and  knowing  that  these  notes 
were  intended  to  be,  as  they  were  in 
fact,  discounted  by  B.,  and  the  pro- 
ceeds applied  in  payment  of  the  debts 
and  liabilities  of  the  firm.  In  the  course 
of  these  transactions,  M.,  by  virtue  of 
said  power,  indorsed  two  notes,  which 
were  discounted  by  B.,  and  the  pro- 
ceeds credited  to  the  firm.  The  parties 
to  these  notes  having  failed,  B.  sought 
a  remedy  on  the  guaranty  against  A.; 
and  it  was  held  that  the  guaranty,  by  its 
terms,  contemplated  only  such  paper  as 
should  be  indorsed  by  the  firm  of  S.  M. 
&  G.,  as  a  firm,  and  during  the  continu- 
ance of  the  partnership,  but  that,  for 
the  purpose  of  settling  the  partnership 
concerns,  the  partnership  relation  be- 
tween the  partners  continued  to  subsist 
after  the  dissolution,  and  the  notes  so 
indorsed  by  M.  were  in  legal  contem- 
plation  indorsed  by   the   firm ;  conse- 

[524] 


quently  they  were  embraced  within  the 
scope  and  true  meaning  of  the  guaran- 
ty. And  in  Staats  v.  Howlett,  4  Denio, 
559,  A.  gave  B.  an  undertaking  in 
writing  as  follows  :  —  "I  hereby  obli- 
gate myself  to  hold  you  harmless  for 
any  indorsement  you  may  make  for,  or 
have  made  for,  the  late  firm  of  jPeck, 
Howlett  &  Foster."  The  firm  had  pre- 
viously become  dissolved  by  the  death 
of  one  of  its  members.  A  note  subse- 
quently made  by  one  of  the  surviving 
partners,  in  the  course  of  liquidating 
the  business  of  the  firm,  and  signed 
'•  S.  K.  Howlett,  for  the  late  firm  of 
Peck,  Howlett  &  Foster,"  was  indorsed 
by  B.  Held,  that  it  was  within  the 
terms  of  the  guaranty.  The  case  of 
Pemberton  v.  Oakes,  4  Russ.  154,  illus- 
trates the  principle  of  the  text.  See 
farther,  that  guaranties  are  to  be  con- 
strued strictly,  and  that  if  any  partners 
be  taken  into  or  retire  from  a  firm  the 
guaranty  does  not  continue.  Simson 
V.  Cooke,  8  Moore,  588;  Kipling  v. 
Turner,  5  B.  &  Aid.  261  ;  Wright  v. 
Russell,  3  Wils.  530 ;  Barclav  r.  Lucas, 
3  Doug.  321;  Penoyer  v.  Watson,  16 
Johns.  100;  Barker  v.  Parker,  1  T.  R. 
287  ;  Dry  v.  Davy,  2  P.  &  Dav.  249 ; 
Place  V.  Delegal,  4  Bing.  N.  C.  426 ; 
Dauce  v.  Girdler,  4  B.  &  P.  34  ;  Myers 
V.  Edge,  7  T.  R.  254. 

(/)     Metcalf    r.    Bruin,     12    East, 
405. 


CH.   VIII.] 


GUARANTY. 


508 


present  charter,  and  under  any  extension  or  renewal  thereof. 
So  provision  may  be  made  for  its  validity  to  a  partnership 
after  a  change  of  members,  perhaps  by  adequate  covenants, 
even  without  the  intervention  of  trustees  ;  although  it  would 
certainly  be  the  better,  if  not  the  only  safe  way,  to  constitute 
trustees.  But,  from  what  has  already  been  said,  it  will  be 
obvious  that  unless  the  contract  of  guaranty  expressly  pro- 
vides for  these  changes,  their  occurrence  discharges  the  gua- 
rantor from  his  obligation,  (m) 

So  a  bond  for  the  good  conduct  of  a  clerk,  when  the  obli- 
gee died  and  the  executor  employed  the  same  clerk  in  ar- 
ranging and  finishing  the  business  of  the  obligee,  was  not 
*held  sufficient  to  maintain  an  action  by  the  executor  for  mis- 
conduct of  the  clerk  after  the  death  of  the  obligee,  (n) 

In  regard  to  the  subject-matter,  a  guaranty  to  cover  goods 
supplied  to  a  certain  amount,  without  restriction  of  time, 
continues  until  revoked ;  although  even  such  continuing 
guaranty  may  be  discharged  by  a  change  of  the  terms  of  cre- 
dit, (o)    If  the  guarantor  means  to  limit  his  liability  to  a  single 


(m)  The  case  of  Barclay  v.  Lucas,  3 
Doug.  321, 1  T.  R,  291,  n.  a,  altliough  it 
it  has  been  doubted  on  some  points,  (see 
Weston  V.  Barton,  4  Taunt.  681,)  is  yet 
an  authority  for  this  principle,  that  if  the 
terms  of  the  contract  show  it  was  the 
intention  of  the  parties  that  the  liability 
should  continue,  such  will  be  the  case, 
although  the  names  of  the  firm  change. 
Such  was  evidently  the  court's  un- 
derstanding of  the  bond  in  that  case, 
for  Lord  Mansfield  observed  :  —  "  The 
question  turns,  as  Lord  Chief  Justice 
l)e  Grey  observes,  in  the  case  which 
has  been  cited,  upon  the  meaning  of  the 
parties.  In  endeavoring  to  discover 
that  meaning,  the  subject-matter  of  the 
contract  is  to  be  considered.  It  is  no- 
torious that  these  banking-houses  con- 
tinue for  ages  with  the  occasional  addi- 
tion of  new  partners.  In  such  esta- 
blishments clerks  are  necessary,  who 
now  and  then  succeed  as  partners,  an 
arrangement  very  proper  and  very  bene- 
ficial to  the  clerks.  The  house  requires 
security  for  their  honesty.  Now  it 
seems  to  mc  to  make  no  difference  whe- 
ther a  new  partner  is  introduced  or  not. 


for  there  is  no  doubt  that  it  is  a  security 
to  the  house.  I  am  glad  that  there  is  a 
distinction  between  this  case  and  that 
decided  in  the  Common  Tleas ;  for  I 
think  that  the  plaintiffs  are  entitled  to 
recover  to  the  extent  of  the  whole  sum 
embezzled,  or  at  all  events  to  the  extent 
of  their  own  share."  This  principle 
was  the  foundation  of  the  decision  in 
Pease  i-.  Hirst,  10  B.  &  C.  122. 

(n)  Barker  v.  Parker,  1  T.  R.  287.  ' 
(o)  In  Bastow  v.  Bennett,  3  Camp. 
220,  A.  gave  to  B.  a  written  guaranty 
to  the  extent  of  £300  for  any  goods  he 
miglit  supply  to  C,  provided  C.  neg- 
lected to  pay  in  due  time.  B.  supplied 
goods  to  C.  accordingly  at  two  months 
credit,  and  C.  paid  in  due  time  to 
an  amount  exceeding  £300.  The  ac- 
count having  run  for  some  time  on 
these  terms,  and  tlicre  being  a  balance 
due  to  B.,  a  new  account  was  opened 
on  new  terms  of  credit.  Hdd,  that  the 
guaranty  extended  to  all  goods  furnish- 
ed while  the  term  of  credit  remained 
unchanged,  but  not  to  those  furnished 
after  the  term  of  credit  was  changed, 
and  a  new  account  opened. 

[525] 


-508 


THE  LAW   OF  CONTRACTS. 


[book   III. 


transaction,  he  should  so  express  it.  (p)  Still,  if  this  purpose 
may  fairly  be  gathered  from  the  whole  contract,  courts  will 
so  construe  it.  (q) 


(p)  Merle  V.  Wells,  2  Camp.  413. 
In  this  case  the  guaranty  was  in  these 
words  :  —  "  Gentlemen,  I  have  been  ap- 
plied to  by  my  brother,  William  Wells, 
jeweller,  to  be  bound  to  you  for  any 
debts  he  may  contract,  not  to  exceed 
one  hundred  pounds,  (with  you)  for 
goods  necessary  in  his  business  as  a  jew- 
eller. I  have  wrote  to  say  by  this  decla- 
ration I  consider  myself  bound  to  you  for 
any  debt  he  may  contract  for  his  busi- 
ness as  a  jeweller,  not  exceeding  one 
hundred  pounds,  after  this  date. 
(Signed,)  John  Wells."  And  Lord 
Ellenborough  said  :  "  I  think  the  defend- 
ant was  answerable  for  any  debt  not  ex- 
ceeding one  hundred  pounds  which  Wil- 
liam Wells  might  from  time  to  time 
contract  with  the  plaintiffs  in  the  way 
of  his  business.  The  guaranty  is  not 
confined  to  one  instance,  but  applies  to 
debts  successively  renewed.  If  a  party 
means  to  be  surety  only  for  a  single 
dealing  he  should  take  care  to  say  so. 
By  such  an  instrument  as  this  a  con- 
tinuing suretyship  is  created  to  the 
specified  amount.  There  must  be,  there- 
fore, a  verdict  for  the  plaintiff's  for 
£100." 

(q)  See  Crcmer  i'.  Higginson,  1  Ma- 
son, 323,  which  is  a  leading  case  on  this 
subject.  In  this  case  the  letter  of  gua- 
ranty contained  this  clause  : —  "  The 
object  of  the  present  letter  is  to  request 
you,  if  convenient,  to  furnish  them" 
(Messrs.  Stephen  and  Ilcnry  Higgin- 
son,) "with  any  sum  they  may  want, 
as  far  as  fifty  thousand  dollars ;  say 
fifty  thousand  dollars.  They  will  i-e- 
imburse  you  the  amount,  together  with 
interest,  as  soon  as  arrangements  can 
be  made  to  do  it;  and  as  our  embargo 
cannot  be  continued  much  longer,  wc 
apprehend  there  will  be  no  difficulty  in 
this.  We  shall  hold  ourselves  answer- 
able to  you  for  the  amount."  It  was 
held,  that  this  was  not  an  absolute  ori- 
ginal undertaking,  but  a  guaranty;  that 
it  covered  advances  only  to  Stephen 
and  Henry  Higgingon  (who  were  then 
partners,)  on  partnership  account,  and 
could  not  be  applied  to  cover  advances 
to  either  of  the  partners  separately,  on 
his  separate  account ;  that  the  authointy 
of  the  guaranty  was  revoked  by  a  disso- 
lution of  the  partnership,  and  no  subse- 

[526] 


quent  advances  made  by  the  party,  after 
a  full  notice  of  such  dissolution,  were 
within  the  reach  of  the  guaranty ;  that 
the  letter  did  not  import  to  be  a  con- 
tinuing guaranty  for  money  advanced, 
toties  qiwties,  from  time  to  time,  to  the 
amount  of  $50,000,  but  for  a  single  ad- 
vance of  money  to  that  amount;  and 
that,  when  once  advances  were  made 
to  $50,000,  no  subsequent  advances 
were  within  the  guaranty  ;  although,  at 
the  time  of  such  further  advances,  the 
sum  actually  advanced  had  been  re- 
duced below  $50,000,  by  reimburse- 
ments of  the  debtors.  In  Grant  v. 
Ridsdale,  2  Har.  &  Johns.  186,  a  gua- 
ranty in  the  following  terms  :  —  "I  will 
guaranty  their  engagements,  should  you 
think  it  necessary,  for  any  transactions 
they  may  have  in  your  house,"  was  held 
an  absolute  and  continuing  guaranty, 
until  countermanded. —  So  where  the 
defendant  addressed  a  letter  to  the 
plaintiff's,  stating  that  his  brother  wish- 
ed to  go  into  business,  and  promising  to 
be  accountable  for  such  goods  furnished 
by  the  plaintiff's  as  his  brother  should 
call  for,  from  $300  to  $500  worth ;  in 
consequence  of  which  the  plaintiff's  fur- 
nished him  with  divers  parcels  of  goods  ; 
it  was  held  that  this  was  a  continuing 
guaranty  to  the  amount  specified,  and 
was  not  limited  to  the  bill  of  parcels 
first  delivered.  Rapelye  v.  Bailey,  5 
Conn.  149.  See  also  Clark  r.  Burdett, 
2  Hall,  197.  —  A  writing  in  these  words, 
"  I  agree  to  be  responsible  for  the  price 
of  goods  purchased  of  you,  cither  by 
note  or  account,  at  any  time  hereafter, 
to  the  amount  of  $100,"  is  a  continuing 
guaranty  to  that  extent,  for  goods  to  be 
at  any  time  sold  before  the  credit  is  re- 
called. Bent  V.  Hartshorn,  1  Met.  24. — 
Many  of  the  cases  seem  to  hold  with 
Lord  Ellenborough,  in  IMerle  v.  Wells, 
2  Camp.  413,  that  the  guaranty  will  be 
understood  to  be  continuing,  unless  ex- 
pressly limited.  But  the  contrary  opin- 
ion was  expressed  in  White  v.  Reed, 
15  Conn.  457.  In  that  case  the  defend- 
ant gave  the  plaintiff'  a  writing  in  these 
words,  "  For  any  sum  that  my  son  G. 
may  become  indebted  to  vou,  not  ex- 
ceeding $200,  I  will  hold  niyself  ac- 
countable." IJtld,  that  the  terms  of  this 
instrument  were  satisfied  when  anv  in- 


CH.   VIII.] 


GUARANTY. 


509 


SECTION  VI. 
HOW   A   GUAEANTOR   IS   AFFECTED   BY   INDULGENCE   TO  A  DEBTOR. 

A  guarantor  is  entitled  to  a  just  protection.  But  this 
principle  is  not  carried  so  far  as  to  permit  him  to  compel  the 
creditor  unreasonably  to  proceed  against  the  principal  debt- 
or, (r)  From  some  cases  it  may  be  doubted  whether  he  has 
any  power  in  this  way.  In  one  case,  (5)  it  was  held  that  a 
surety,  who  was  injured  by  a  delay  in  suing  the  principal 
debtor,  was  not  discharged,  on  the  ground  that  he  might  have 
insured  a  prompt  demand  against  the  debtor,  by  making  him- 
self an  indorser  instead  of  a  surety.  But  this  would  have 
secured  only  a  demand,  and  not  a  suit;  and  it  seems  hard 
and  severe  to  say  that  because  one  does  not  secure  to  him- 


dcbtedness  within  the  amount  limited 
was  incurred  by  G.,  and  consequently 
tliut  it  was  not  a  continuing  guaranty. 
So  in  Boyce  v.  Ewart,  1  Kice,  126,  the 
guaranty  was  in  these  words,  "  The 
bearer  is  about  to  commence  business, 
to  assist  him  in  which  he  will  need  your 
aid,  which  if  you  render,  we  will,  in 
case  of  failure,  indemnify  you  to  the 
amount  of  $4,000."  Held,  that  it  was 
not  a  continuing  guaranty,  but  appli- 
cable to  the  bearer's  commencing  in 
business,  and  that,  as  soon  as  the  bearer 
had  refunded  $4,000,  the  guaranty  ceased. 
In  Fellows  v.  Prentiss,  3  Denio,  512,  a 
guaranty  in  these  words :  "  I  hereby 
agree  to  guaranty  to  you  the  payment 
of  such  an  amount  of  goods,  at  a  credit 
of  one  year,  interest  after  six  months, 
not  exceeding  $500,  as  you  may  credit 
to  A.,"  was  held  not  to  be  a  continuing 
guaranty,  but  it  was  held  to  be  exhaust- 
ed by  a  single  purchase  of  goods  to  the 
amount  of  $500.  See  also  Whitney  v. 
Groot,  24  Wend.  82 ;  Lawrence  v.  Mc- 
Calmont,  2  How.  426  ;  Chapman  v.  Sut- 
ton, 2  C.  B.  634;  Tanner  v.  Moore,  11 
Jur.  11;  Allnut  v.  Ashenden,  5  M.  & 
Gr.  392;  Hitchcock  v.  Humphrey,  5 
M.  &  Gr.  559;  Martin  v.  Wright,  9 
Jur.  178;  Johnston  v.  Nicholls,  1  C.  B. 
251  ;  Farmers  &  Mechanics  Bank  v. 
Kcrcheval,  2  Mich.  504 ;  Agawara  Bank 
V.  Strever,  IG  Barb.  82. 

(r)  It  seems  to  be  well  settled   that 
mere  delay  by  the  creditor  to  proceed 


against  the  principal,  although  request- 
ed to  do  so  by  the  surety,  will  not  in 
and  of  itself  discharge  the  surety.  Huff- 
man V.  Hulbert,  13  Wend.  377;  Davis 
V.  Higgins,  3  New  Hamp.  231 ;  Bel- 
lows V.  Lovell,  5  Pick.  307  ;  Erie  Bank 
V.  Gibson,  1  Watts,  143  ;  Cope  v. 
Smith,  8  S.  &  R.  110;  Johnson  v. 
Planters  Bank,  4  S.  &  M.  165.  But  if 
this  delay  of  the  creditor  operates  to  the 
injury  of  the  surety,  as  if  the  principal 
debtor  was  at  the  time  of  the  request 
solvent,  but  afterwards  became  insol- 
vent, and  the  surety  will  not  be  able  to 
collect  the  amount,  he  is  pro  (unto  dis- 
charged. Eow  I'.  Pulver,  1  Cow.  246  ; 
State  V.  Reynolds,  3  Miss.  95  ;  Herriek 
V.  Borst,  4  ilill,  650.  And  see  note  (w) 
post. 

(s)  Townsend  v.  Riddle,  2  N.  Hamp. 
448.  And  Woodbury,  J.,  said:  —  "Here 
the  character  of  the  defendant  as  a 
surety  did  not  a])pcar  on  the  face  of  the 
contract,  nor  was  it  proved  that  the 
plaintiff  knew  him  to  be  only  a  surety. 
Here  he  was  not  liable  as  a  mere  in- 
dorser on  the  same  instrument,  or  as  a 
guarantor  on  a  separate  one.  No  time 
for  an  adjustment  with  the  principal  was 
fixed  by  law ;  no  delay  was  given  to 
him  after  a  request  by  the  surety  for  a 
prosecution ;  no  new  engagement  for 
forbearance  appears  to  have  been  en- 
tered into  between  the  creditor  and 
debtor." 

[527] 


•510 


THE   LAW   OF   CONTRACTS. 


[book  III. 


self  the  precise  and  immediate  demand  and  notice  necessary 
to  hold  indorsers,  he  shall  not  be  entitled  to  any  care  or  dili- 
gence on  the  part  of  the  creditor. 

If  the  surety  requests  the  creditor  to  collect  the  debt,  and 
there  is  refusal  and  delay,  and  subsequent  insolvency,  it 
would  seem  difficult  to  resist  the  surety's  claim  to  be  dis- 
charged, (t)  In  1816  it  was  said  by  the  Supreme  Court  of 
New  York,  in  a  case  where  such  facts  were  pleaded  and  de- 
murred to,  that  the  plea  was  good,  and  the  defence  suffi- 
cient, (u)     Chancellor  Kent  has  questioned  the  law  of  this 


(t)  In  the  Trent  Navigation  Co.  v. 
Harlcy,  10  East,  35,  Lord  Ellenhoroucjh 
said:  —  "The  only  question  is,  whether 
the  laches  of  the  obligees,  in  not  calling 
upon  the  principal  so  soon  as  they  might 
have  done,  if  the  accounts  had  been 
properly  examined  from  time  to  time, 
be  an  estoppel  at  law  [in  an  action] 
against  the  sureties  ?  1  know  of  no 
such  estoppel  at  law,  whatever  remedy 
there  mav  be  in  equity."  And  in  Daw- 
son r.  Lawes,  23  E.'L.  &  E.  374.  the 
Vice- Chancellor  said  that  in  order  to 
discharge  sureties  for  the  faithful  per- 
formance of  duties  by  their  principal, 
from  their  obligation,  there  must  be  such 
an  act  of  connivance  as  enabled  the 
party  to  get  the  fund  in  his  hands,  or 
such  an  act  of  gross  negligence  as  to 
amount  to  a  wilful  shutting  of  the  per- 
son's eyes  to  the  fraud  which  the  party 
was  about  to  commit,  or  something 
approximating  to  it. 

(u)  Paia  V.  Packard,  13  Johns.  174. 
And  see  People  v.  Jansen,  7  Johns.  336. 
In  Herrick  v.  Borst,  4  Hill,  650,  it  was 
held  that  although  the  creditor  neglect 
to  prosecute  the  principal,  after  a  re- 
quest by  the  surety,  this  will  not  dis- 
charge the  surety,  if  the  principal  was 
then  insolvent.  And  the  surety,  in 
order  to  establish  a  defence  of  this  kind, 
must  show  dearhj  that  at  the  time  the 
request  was  made  the  debt  could  have 
been  collected  of  the  principal.  Cowen, 
J.,  then  observed:  —  "The  view  taken 
of  the  question  in  Huffman  v.  Hulbert, 
13  Wend.  377,  the  only  case  in  this 
court  where  the  kind  or  degree  of  insol- 
vency on  which  the  surety  is  to  be  dis- 
charged has  been  noticed,  is  not  incon- 
sistent with  the  direction  given  at  the 
circuit.  Mr.  Justice  Nelson  there  said, 
the  rule  is  founded  on  the  assumption 

[528] 


that  the  debt  is  clearly  collectable  by 
suit ;  and  upon  this  ground  only  can 
the  rule  be  defended.  Again,  he  says, 
there  must  be  something  more  than  an 
ability  to  pay  at  the  option  of  the 
debtor.  Among  other  reasons  he  men- 
tions the  surety  having  a  remedy  of  his 
own  by  payment  and  suit,  a  reason 
which,  as  I  mentioned,  would  in  other 
cases,  deprive  the  party  complaining  of 
all  claim ;  for  in  no  other  case  that  I 
am  aware  of  can  he  demand  compen- 
sation or  raise  a  defence  grounded  on 
his  own  neglect.  What  principle  such 
a  defence  should  ever  have  found  to 
stand  upon  in  any  court  it  is  difficult  to 
see.  It  introduces  a  new  term  into  the 
creditor's  contract.  It  came  into  this 
court  without  precedent,  (Pain  v.  Pack- 
ard, 13  Johns.  174,)  was  afterwards  re- 
pudiated even  by  the  Court  of  Chan- 
cery, (King  V.  Baldwin,  2  Jolms.  Ch. 
Kep.  554,)  as  it  always  has  been  both 
at  law  and  equity  in  England  ;  but  was 
restored  on  a  tie  in  the  Court  of  Errors, 
turned  by  the  casting  vote  of  a  layman. 
King  V.  Baldwin,  17  Johns.  384.  ' Piatt, 
J.,  and  Yates^  J.,  took  that  occasion  to 
acknowledge  they  had  erred  in  Pain 
V.  Packard,  as  Senator  Van  Vechten 
showed  most  conclusively  that  the  whole 
court  had  done.  The  decision  was  ob- 
viously erroneous  in  another  respect,  as 
was  also  shown  by  that  learned  sena- 
tor. It  overruled  a  previous  decision 
of  the  same  court  in  Le  Guen  v.  Gou- 
verncur,  1  Johns.  Cas.  492,  on  the  ques- 
tion of  res  judicata  ;  necessarily  so,  un- 
less it  be  conceded  that  the  defence 
belongs  exclusively  to  equity.  I  do  not 
deny  that  the  error  has  become  in- 
veterate, though  it  has  never  been  treat- 
ed with  much  favor.  A  dictum  was 
referred  to  on  the   argument,    in   the 


CH.    VIII.] 


GUARANTY. 


511 


case,  and  it  is  said  that  two  of  the  judges  of  the  court  after- 
wards retracted  their  opinion.  But  in  1833,  the  Supreme 
Court  of  the  same  State  seemed  to  hold  the  same  views. 
In  1811  this  court  decided  that  a  mere  delay  in  calling  on 
the  principal  will  not  discharge  the  surety,  (y)  Of  this  there 
seems  no  question  ;  and  the  objection  to  discharging  him 
where  he  requests  a  collection  of  the  debt  and  is  injured  by 
the  refusal,  rests  upon  the  right  and  power  of  the  surety  to 
pay  the  debt  himself  whenever  he  pleases,  and  then  take  his 
own  measures  against  the  debtor.  It  would  be,  however, 
unjust  to  hold  him  liable  on  this  ground,  where  he  has  been 
injured  by  the  certain  fault  of  the  party  to  whom  he  makes 
the  guaranty  (iv)  And  from  a  consideration  of  the  cases, 
and  the  reasons  on  which  they  rest,  we  think  this  rule  may 
be  drawn;  —  that  a  surety  is  discharged  where  the  creditor, 


Manchester  Iron  Manuf.  Co.  v.  Sweet- 
ing, 10  Wend.  162,  that  the  refusal  to 
sue  is  tantamount  to  an  agreement  not 
to  prosecute  the  surety.  The  remark 
meant,  however,  no  more  than  that  such 
a  neglect  as  amounts  to  a  defence  is 
like  the  agreement  not  to  sue  in  respect 
to  being  receivable  under  the  general 
issue.  The  judge  was  speaking  to  the 
question  whether  the  defence  should 
not  have  been  specially  pleaded  as  it 
was  in  Pain  v.  Packard.  On  the  other 
hand,  it  has  often  been  said  that  the 
defence  should  not  be  encouraged,  but 
rather  discountenanced  ;  and  several 
decisions  will  be  found  to  have  pro- 
ceeded on  this  ground." 

(v)  People  V.  Jansen,  7  Johns.  3-36. 
The  authorities  all  agree  upon  this 
point.  Hunt  v.  United  States,  1  Gallis. 
32;  Naylor  v.  Moody,  3  Blackf.  93; 
Hunt  i'.''Bridgham,  2'Pick.  581;  Win- 
ter V.  Branch  Bank,  23  Ala.  762.  And 
even  an  agreement  by  the  creditor  to 
enlarge  the  time,  unless  it  is  made  upon 
such  consideration,  or  in  such  form  as 
to  be  binding  upon  him,  and  to  estop 
him  fi'om  suing  the  principal,  does  not 
discharge  the  surety.  Leavitt  r.  Sa- 
vage. 16  Maine,  72;  Bailey  i^.  Adams, 
10  New  Ilamp.  162;  Joslyn  v.  Smith, 
13  Verm.  3.53  ;  Harter  v.  Moore,  5 
Blackf.  367 ;  Fjirniers  Bank  v.  Ray- 
nolds,  13  Ohio,  84.  And  see  note  {>/) 
post. 

(w)  The  better  authorities  agree  that 
if  the  surety  can  positively  and  clearly 

VOL.  I.  45 


show  an  injury  to  himself  by  tlie  failure 
of  the  creditor  to  prosecute  after  re- 
quest, he  is  exonerated,  pro  tanto.  Row 
V.  Pulver,  1  Cow.  246  ;  State  v.  Rey- 
nolds, 3  Miss.  95;  Manchester  Iron 
Co.  V.  Sweeting,  10  Wend.  162  ;  Good- 
man V.  Griffin,  3  Stew.  160;  Hoga- 
boom  V.  Herrick,  4  Verm.  131  ;  John- 
ston V.  Thompson,  4  Watts,  446 ;  Wetzel 
V.  Sponsler's  Exrs.  18  Penn.  460;  Lang 
V.  Brevard,  3  Strob.  Eq.  59.  In  Locke 
r.  United  States,  3  Mason,  446,  it  was 
held  that  the  neglect  of  the  postmaster- 
general  to  sue  for  balances  due  by  post- 
masters, within  the  time  prescribed  by 
law,  although  he  thereby  is  rendered 
personally  chargeable  with  such  bal- 
ances, is  not  a  discharge  of  the  post- 
masters or  their  sureties  upon  their 
official  bonds.  And  in  Bellows  ?'.  Lo- 
vell,  5  Pick.  307,  the  Supreme  Court  of 
Massachusetts  held  that  a  refusal  of 
the  creditor  to  sue  the  principal  upon 
a  mere  request  of  the  surety,  unaccom- 
panied with  an  oifer  of  indemnity 
against  the  costs  and  charges  of  the 
suit,  is  not  a  defence  at  law  to  a  suit 
against  the  surety,  notwithstanding  the 
principal  may  afterwards  have  become 
insolvent.  So  in  Davis  v.  Huggins,  3 
New  Hamp.  231,  where  one  who  had 
signed  a  promissory  note  as  surciy  re- 
quested the  payee  to  collect  the  money 
of  the  principal,  but  the  payee  neglected 
so  to  do  until  the  princi{)al  became  in- 
solvent ;  it  was  held  that  the  surety  was 
not  discharged. 

[529] 


512  THE  LAW  OF  CONTRACTS.         [BOOK  III. 

after  notice  and  request,  has  been  guilty  of  a  delay  which 
amounts  to  gross  negligence,  and  by  this  negligence  the 
surety  has  lost  his  security  or  indemnity.  If,  however,  in 
that  case  the  creditor  could  show  full  knowledge  and  an 
equal  negligence  on  the  part  of  the  guarantor,  it  would  be 
difficult  to  point  out  any  acknowledged  principles  which 
would  lead  to  his  discharge,  (x) 

1  A  guarantor  or  surety  has  a  right  to  expect  that  the  cre- 
//ditor  will  not  wantonly  lose  or  destroy  his  claim  against  the 

principal  debtor,  with  the  intention  of  falling  back  upon  the 
liability  of  the  guarantor,  (xx)  For  the  guarantor  promises 
only  to  pay  the  debt  of  another,  in  case  that  other  does  not 
pay  it ;  and  this  contract  is  held  to  imply  some  endeavor  and 
some  diligence  on  the  part  of  the  creditor  to  secure  the  debt 
from  the  principal  debtor.  To  this  the  guarantor  is  entitled ; 
but  this  does  not  give  him  the  right  to  debar  the  principal 
debtor  from  all  favor  or  indulgence.  It  was  once  uncertain 
whether  a  forbearance  of  the  debt  did  not  discharge  the  gua- 
rantor ;  but  it  is  now  well  settled  that  a  mere  forbearance, 
leaving  to  the  creditor  the  power  of  putting  his  claim  in  suit 
at  any  time,  does  not  have  this  effect,  (y)     Thus,  the  neglect 

(x)  And  it  has  been  expressly  held,  207 ;  Perrine  v.  Fireman's  Ins.  Co.  22 

that  if   the  extension   of  payment  is  Ala.  575. 

given  to  a  principal,  at  the  instance  of        (y)  It  is  well  settled  that  mere  delay 

the  surety  or  with  his  consent,  the  sure-  without  fraud,  or  agreement  with  the 

ty  is  not  discharged.    Suydam  v.  Vance,  principal,  does  not  discharge  the  surety. 

2  McLean,  99  ;  Solomon  v.  Gregory,  4  Hunt  v.  United  States,  1  Gallison,  32 ; 
Harr.  112;  New  Hampshire  Savings  Naylor  v.  Moody,  3  Blackf.  93;  Hunt 
Bank  v.  Colcord,  15  N.  H.  119.  See  v.  Bridgham,  2  Pick.  581;  Townsend 
also  Day  v.  Ridgway,  17  Penn.  303.  v.  Riddle,  2  New  Hamp.  448 ;  Leavitt 
Or  if  the  surety,  being  informed  of  such  v.  Savage,  16  Maine,  72;  Freeman's" 
an  arrangement,  assents  to  it,  it  is  no  Bank  v.  Kollins,  13  Maine,  202;  John- 
defence  to  him.  Tyson  v.  Cox,  T.  &  ston  v.  Searcy,  4  Yerg.  182;  Dawson  r. 
R.  395  ;  Smith  v.  Winter,  4  M.  &  W.  Real  Estate  Bank,  5  Ark.  283 ;  Mont- 
519  ;  La  Farge  v.  Herter,  11  Barb.  159  ;  gomery  v.  Dillingham,  3  S.  &  M.  647  ; 
Woodcock  V.  Oxford  &  Worcester  Rail-  People  v.  White,  1 1  111.  342  ;  Dorman 
way  Co.  21  E.  L.  &  E.  285.  Or  if  the  v.  Bigelow,  1  Flor.  281.  To  have  such 
surety  has  been  amply  secured  and  in-  effect,  there  must  be  an  actual  agree- 
demnified  by  the  principal,  even  if  the  ment  between  the  creditor  and  the  prin- 
extension  was  made  without  his  con-  cipal  to  extend  the  time  of  payment, 
sent.  Smith  v.  Estate  of  Steele,  25  Hutchinson  v.  Moody,  18  Maine,  393; 
Verm.  427.  Otherwise  if  he  assents  Fuller  v.  IMilford,  2  McLean,  74  ;  Gree- 
in  ignorance  of  the  real  facts.  West  ly  v.  Dow,  2  Met.  176;  Wagman  v. 
V.  Ashdown,  1  Bing.  164;  Robinson  v.  Hoag,  14  Barb.  232.  And  the  agree- 
Offutt,  7  Monroe,  541.  See  also  ante,  ment  must  be  upon  sufficient  considera- 
p. -505,  and  n.  («.)  tion,  and  must   amount  in  law  to  an 

(xx)  N.  H.  Savings  Bank  v.  Colcord,     estoppel  upon  the  creditor,  sufficient  to 
15  N.  H.  119;  Holt  v.  Bodey,  18  Penn.    prevent  him  from  beginning  a  suit  be- 

[530] 


CH.   VIII.] 


GUARANTY. 


613 


of  postmasters  to  sue  for  balances  due  them  does  not  dis- 
charge their  sureties,  (z)  Where  a  creditor  received  the 
interest  in  advance  for  sixty  days,  this  did  not  discharge  the 
surety  ;  for  though  it  undoubtedly  signified  that  the  debt  was 
not  to  be  demanded  within  that  period,  yet  it  might  have 
been  at  any  moment,  (a)  So  where  a  bank  renewed  a  note 
on  receiving  twenty  five  per  cent.,  and  the  interest  on  the 
remainder  for  a  certain  period,  the  note  lying  in  the  bank 
overdue,  the  surety  was  not  discharged,  (b) 


fore  the  expiration  of  the  extended  time  ; 
and  when  such  an  agreement  is  made 
the  surety  is  discharged.  ;Leavitt  v. 
Savage,  16  Maine,  72  ;  Bailey  i;.  Adams, 
10  New  Hamp.  162  ;  Hoyt  v.  French,  4 
Foster.  198  ;  Joslyn  v.  Smith,  13  Verm. 
353 ;  Wheeler  v.  Washburn,  24  Verm. 
293 ;  Chace  r.  Brooks,  .5  Cush.  43 ;  Hoff- 
man V.  Coombs,  9  Gill,  284  ;  Payne  v. 
Commercial  Bank,  6  S.  &  M.  24  ;  New- 
ell V.  Hamer,  4  How.  (Miss.)  684; 
Coman  v.  State,  4Blackf.  241  ;  Fai-mcrs 
Bank  v.  Raynolds,  13  Ohio,  84;  Hayncs 
V.  Covington,  9  S.  &  M.  470  ;  Anderson 
V.  Mannon,  7  B.  Monr.  217  ;  Sawyer  v. 
Patterson,  11  Ala.  523;  Grav's  Exrs.  v. 
Brown,  22  Ala.  262  ;  Mos.s"  v.  Hall,  5 
Exch.  46  ;  Phillips  i-.  Rounds,  33  Maine, 
357  ;  Thomas  v.  Dow,  lb.  390  :  Turrill 
V.  Boynton,  23  Verm.  192;  Bangs  w. 
Strong,  4   Coms.  315;  Miller  v.  Stem, 

12  Penn.  383  ;  Mitchell  v.  Cotton,  3 
Florida,  134;  Burke  v.  Cruger,  8  Tex. 
60.  Therefore  a  surety  in  a  specialty  is 
not  discharged  by  a  parol  agreement 
between  the  creditor  and  the  principal, 
on  the  day  the  debt  became  due,  to 
allow  the  principal  one  year  more  for 
payment.  Tate  v.  Wymond,  7  Blackf. 
240.  But  the  agreement  for  extension 
must  not  only  be  valid  and  binding  in 
law,  but  the  time  of  the  extension  must 
be  definitely  and  precisely  fixed.  Mil- 
ler V.  Stem,  2  Barr,  286;  Parnell  v. 
Price,  3  Rich.  121  ;  Wadlington  i'.  Ga- 
ry, 7  S.  &  M.  522  ;  Gardner  v.  Watson, 

13  111.  347  ;  Waters  v.  Simpson,  2  Gil- 
man,  570 ;  People  v.  McHatton,  lb. 
638;  McGee  v.  Metcalf,  12  S.  &  M. 
535.  And  the  sureties  are  not  discharg- 
ed by  the  giving  of  time  to  the  principal, 
if  a  right  has  been  reserved,  in  the  con- 
tract to  proceed  against  the  sureties  at 
any  time.  Wyke  v.  Rogers,  1 2  E.  L.  & 
E.  163;  Viele  v.  Hoag,  24  Verm.  46; 


Hubbell    V.    Carpenter,    1     Seld.    171 : 
Wagman  v.  Hoag,  14  Barb.  232. 

(2)  See  Locke  v.  United  States,  3 
Mason,  446,  cited  ante,  in  note  (iv)  p. 
511. 

(a)  Oxford  Bank  v.  Lewis,  8  Pick. 
458. 

(6)  Blackstone  Bank  v.  Hill,  10  Pick. 
129.  And  the  ground  of  this  decision 
is  thus  stated  by  the  court :  "  The  first 
objection  that  an  extension  of  credit 
was  given  to  the  principal  without  the 
consent  of  the  surety,  if  made  out  would 
be  a  good  defence,  but  it  is  not  support- 
ed in  point  of  fact.  The  principle  is 
stated  in  Oxford  Bank  v.  Lewis,  8  Pick. 
458,  that  to  discharge  the  surety,  the 
contract  for  new  credit  must  be  such  as 
will  prevent  the  holder  of  the  note  from 
bringing  an  action  against  tlie  princi- 
pal. The  plaintiffs  were  not  precluded, 
during  such  supposed  renewed  term  of 
credit,  from  suing  the  principal,  in  the 
case  under  consideration.  As  to  the 
understanding  that  the  plaintiffs  were 
not  to  collect  the  note  unless  they 
should  want  money,  that  was  a  matter 
of  courtesy  rather  than  of  legal  obliga- 
tion. The  strongest  circumstance  show- 
ing a  renewed  credit  is  the  receiving  of 
intei-est  in  advance ;  but  in  the  case  of 
Oxford  Bank  v.  Lewis,  where  that 
jioint  was  directly  adjudged,  it  was  held 
that  that  circumstance  did  not  tie  the 
hands  of  the  plaintiffs,  if  at  any  time  they 
thought  it  necessary  for  their  security 
to  bring  an  action."  See  also  Strafford 
Bank  v.  Crosby,  8  Greenl.  191.  But 
these  cases  seem  to  rest  on  the  ground 
of  usage  of  the  bank,  and  that  the  same 
was  known  to  the  sureties,  and  acqui- 
esced in  by  them.  And  it  was  accord- 
ingly held  in  Crosby  v.  Wyatt,  10  New 
Hamp.  318,  that  if  a  note  "is  made  pay- 
able to  a  bank,  where  a  regular  usage 

[531] 


514  THE   LAW   OF   CONTRACTS.  [BOOK  III. 

(  It  seems  to  be  settled  that  an  express  covenant  not  to  sue 
the  principal  debtor  within  a  limited  time  does  not  discharge 
the  surety ;  because  a  suit  may  nevertheless  be  commenced 
at  any  time,  and  such  a  covenant  is  no  bar,  but  only  gives 
to  the  covenantee  an  action  for  damages,  (c)  But  where 
there  is  an  entry  on  the  docket  of  the  court,  made  by  counsel, 
to  the  effect  that  no  action  shall  be  brought  on  the  original 
debt,  this  discharges  the  surety,  because  it  will  be  enforced 
by  the  court,  and  no  such  action  will  be  permitted.  It  is 
therefore  equivalent  to  a  discharge  of  the  debt  by  the  cre- 
ditor, which  of  course  operates  the  discharge  of  the  gua- 
rantor, (d)  Such  an  arrangement  made  with  the  principal 
debtor  without  the  consent  of  the  surety,  although  innocently 
done,  may  work  an  injury  to  the  surety. 


SECTION  VII. 

OP  NOTICE   TO   THE   GUARANTOR. 

A  guaranty  may  be  extinguished  or  discharged  by  the 
fact  that  the  guarantee  gives  no  notice  to  the  guarantor  of 
the  failure  of  the  principal  debtor,  and  of  the  intention  of  the 
guarantee  to  enforce  the  guaranty.  For  a  guarantor  is  enti- 
tled to  reasonable  notice  of  this.  What  the  notice  should  be, 
or  when  it  should  be  given,  is  not  settled  in  the  case  of  a 


exists  to  receive    payment  by  instal-  paymentbyyearly  instalments,  he  there- 
ments,  at  regular  intervals,  with  the  in-  by  discharges  the  surety, 
terest  on  the  balance  in  advance,  there  ,.  p^^^j^^  ^._  ^5,^^^^,    g  pj^j.   229. 
is  presumptive  evidence  of  the  assent  of  ^^^^^  j^  ^^^^^^^  ^,   Valentine,  U  Pick, 
a  surety  that  payment  may  be  delaj^d,  ^.^^^^^  ^^^  defendant  was  arrested 
and  received  by  mstalments  according  ^^  ^^^^^     .^^^^^  ^^^  gave  bail,  and  the 
to   such  usage    until    the   contrary   is  plaintiff,  before  judgment  was  rendered, 
shown.     But   this   principle   cannot  be  Covenanted  not  to  an-est  him  on  any 
held  to  apply  to  any  delay  beyond  such  ^.^.^  ^^  execution  within  four  months, 
regular  usage,  and  no  assent  to   any  .^  ^^.,^^  j^^j^j  ^^^^  ^j^^  ^^.^  ^.^^  ^^^  ^^^^^^^ 
other  course  can  be  presumed.     A  simi-  discharged,  for  the  covenant  was  only 
lar  doctrine  was  held  m  Savings  Bank  ^^jj^^^-j   '^^   ^^^   ^^^.        ^^^^   ^.^  J^ 
..Ela,llNewHamp^3.36.     So  in  Gif-  ^      j^,^  ^^^^     j^j^^jg,  ^^.'^1 
ford  V  Allen    3  Met  255,  it  was  deter-  J^^^  ^^^  defendant,  nor  the  bail  of  the 
mined  that  if  the  ho  der  of  a  note  pay-  sun-ender  him,  within  the  four 
able  on  demand  makes  a  valid  agree-  ^^^^^is 
ment  with  the  principal  promisor,  with- 
out the  consent  of  the  surety,  to  receive  (d)  FuUam  v.  Valentine,  supra. 

[532] 


CH.  VIII.]  GUARANTY.  -514 

mere  guarantor  as  it  is  in  the  case  of  an  indorser,  but  the 
reason  and  justice  are  the  same  in  both  cases,  and  equally 
require  notice,  in  order  that  the  guarantor  may  at  once  take 
what  measures  are  within  his  power,  to  secure  or  indemnify 
himself.  The  question  of  reasonable  time  is  a  question  of 
law,  and  the  cases  are  very  few  which  would  help  us  in 
determining  what  time  would  be  reasonable.  But,  from  the 
authorities  and  the  reason  of  the  thing,  we  deduce  these 
rules ;  the  guarantor  is  entitled  to  this  notice,  but  cannot 
defend  himself  by  the  want  of  it,  unless  the  notice  and 
demand  have  been  so  long  delayed  as  to  raise  a  presump- 
tion of  waiver  or  of  payment,  or  unless  he  can  show  that  he 
has  lost  by  the  delay  opportunities  for  obtaining  securities 
which  a  notice  or  an  earlier  notice  would  have  given  him. 
In  this  latter  case  a  very  brief  delay,  of  a  day  or  two  only, 
might  be  fatal  to  the  claim  of  the  guarantee,  if  it  appeared 
that  notice  could  easily  have  been  given,  and  would  have 
saved  the  guarantor  from  loss.  The  question  would  be,  in 
such  a  case,  was  there  actual  negligence,  causing  actual  in- 
jury, {dd) 

A  demand  on  the  principal  debtor,  and  a  failure  on  his 
part  to  do  that  which  he  was  bound  to  do,  are  requisite  to 
found  any  claim  against  the  guarantor ;  and  notice  of  the 
failure,  as  we  have  said,  must  be  given  to  him.  (e)  But  if 
the  guaranty  is  for  the  payment  of  a  note,  and  is  absolute 
and  unconditional,  it  has  been  held  that  neither  demand  nor 
notice  is  necessary  to  charge  the  guarantor;  (ee)  but  we 
should  have  some  question  of  this. 

{dd)  Oxford  Bank  v.  Haynes,  8  Pick.  Peters,  114.    But  this  demand  and  no- 

423  ;  Thomas  v.  Davis,  14  Pick.  353  ;  tice  may  be  waived  by  the  surety  in  his 

Talbot  V.   Gay,  18  Pick.  534;  Whiton  guaranty.     Bickford  v.  Gibbs,  8  Cusli. 

V.  Mcars,    11    Mete.    563;   Farmers  &  154. 

Mechanics  Bank  y.  Kercheval,  2  Mich.  (ee)  Head  v.   Cutts,    7   Greenl.   186; 

505  ;  Bickford  v.  Gibbs,  8  Gush.  154.  Breed  v.  Hillhouse,  7  Conn.  523;  co7itrh.\ 

(e)  Ibid ;    Douglass  v.  Reynolds,  7  Greene  v.  Dodge,  2  Ham.  498. 

45  *  [533] 


516 -*  516        THE  LAW  OF  CONTRACTS.  [bOOK  III. 

SECTION  VIII. 

OF  GUARANTY  BY  ONE  IN  OFFICE. 

If  a  guaranty  be  made  by  one  expressly  in  an  official  or 
special  capacity,  as  attorney,  executor,  guardian,  assignee, 
*  trustee,  churchwarden,  or  the  like  ;  and  the  guarantor  holds 
such  office,  and  has  a  right  to  give  the  guaranty  in  his  offi- 
cial capacity,  then  he  is  only  bound  in  that  capacity.  But 
if  he  does  not  hold  such  office,  or  if  he  holds  the  office,  but 
has  no  right  to  give  the  guaranty  in  that  capacity,  then  he  is 
personally  liable,  and  such  designation  is  merely  surplusage, 
or  words  of  description.  (/) 

SECTION  IX. 

OF  KEVOCATION   OF   GUARANTY. 

A  promise  of  guaranty  is  always  revocable  at  the  pleasure 
of  the  guarantor  by  sufficient  notice,  unless  it  be  made  to 
cover  some  specific  transaction  which  is  not  yet  exhausted, 
or  unless  it  be  founded  upon  a  continuing  consideration,  the 
benefit  of  which  the  guarantor  cannot  or  does  not  renounce. 
If  the  promise  be  to  guarantee  the  payment  of  goods  sold  up 
to  a  certain  amount,  and  after  a  part  has  been  delivered,  the 
guaranty  is  revoked,  it  w^ould  seem  that  the  revocation  is 
good,  unless  it  be  founded  upon  a  consideration  which  has 
been  paid  to  the  guarantor  for  the  whole  amount ;  or  unless 
the  seller  has,  in  reliance  on  the  guaranty,  not  only  delivered 
a  part  to  the  buyer,  but  bound  himself  by  a  contract  enforce- 
able at  law  to  deliver  the  residue.  And  if  the  guaranty  be 
to  indemnify  for  misconduct  of  an  officer  or  servant,  this  pro- 
mise is  revocable,  provided  the  circumstances  are  such  that 

{/)  Eedhead  v.  Cator,  1  Stai-k.  14;    pleton  v.  Binks,  5  East,  148;  Sumner 
Hall  V.  Ashurst,  1  Cr.  &  M.  714  ;  Bur-    v.  Williams,  8  Mass.  162. 
rell  V.  Jones,  3  B.  &  Aid.  47  -  51 ;  Ap- 

[534] 


CH.   VIII.]  GUARANTY.  *517 

when  it  is  revoked  the  promisee  may  dismiss  the  servant 
without  injury  to  himself  on  his  failure  to  provide  new  and 
adequate  sureties. 

It  seems,  however,  that  a  distinction  is  taken  between  the 
power  of  revocation,  when  the  guaranty  is  given  by  parol 
contract,  and  when  it  is  under  seal.  In  the  former  case  this 
power  is  very  broadly  asserted,  but  in  the  latter  it  is  almost 
wholly  denied.  An  eminent  judge  says,  indeed,  that  there 
*are  no  means  or  mode  of  revocation  of  guaranty  under 
seal,  (g)  But  whether  this  is  strictly  true  may  well  be 
doubted. 

(g)  Lord  Ellenhorough,  in  Hassell  v.    in  a  court  of  law  a  letter  of  revocation 
Long,  2  M.  &  S.  370.     And  see  Bayky,    to  the  obligee  would  be  of  no  avail,  but 
J.,  in  Calvert  v.  Gordon,  7  B.  &  C.  809.    that  the  proper  court  for  relief  was  a 
So  in  Hough  v.  Warr,  1  C.  &  P.  151,    court  of  equity. 
Abbott,  C.  J.,  expressed  the  opinion,  that 

[535] 


518 


THE   LAW   OF    CONTRACTS. 


[book  III. 


CHAPTER  IX. 


HIRING  OF  PERSONS. 


Sect.  I.  —  Servants. 


In  England,  a  domestic  servant  who  is  turned  away  with- 
out notice,  and  without  fault,  is  entitled  to  one  month's 
wages,  although  there  be  no  agreement  to  that  effect,  [h) 


{h)  Eobinson  v.  Hindman,  3  Esp. 
235.  And  this  is  on  the  ground  that  a 
general  hiring,  that  is  to  say,  a  hiring 
without  any  engagement  as  to  the  dura- 
tion of  the  service,  is  presumed  to  be  a 
hiring  for  a  year,  and  it  will  be  con- 
strued in  a  court  of  law  to  be  a  hiring 
on  the  terms  that  either  party  might 
determine  the  engagement  upon  giving 
a  month's  notice,  and  the  law  implies  a 
promise  by  the  master  to  pay  a  month's 
wages,  if  he  dismiss  his  servant  without 
cause,  without  giving  such  notice.  See 
Pawcett  V.  Cash,  5  B.  e^  Ad.  904 ;  Lil- 
ley  V.  Elwin,  11  Q.  B.  754;  Nowlan  ij. 
Ablett,  2  C.  M.  &  K.  54;  Beeston  v. 
Collyer,  4  Bing.  309,  2  C.  &  P.  607  ; 
Spain  r,  Arnott,  2  Stark.  257  ;  Huttman 
V.  Boulnois,  2  C.  &  P.  511 ;  Holcroft  v. 
Barber,  1  C.  &  K.  4 ;  Baxter  v.  Nurse, 
1  C.  &  K.  10.  But  this  presumption 
of  a  yearly  hiring  may  be  rebutted  by 
evidence  showing  that  such  was  not  the 
intention  of  the  parties.  Bavley  v. 
Eimmell,  1  M.  &  W.  506.  This  was 
an  action  by  an  assistant  surgeon, 
against  his  employer,  to  recover  the 
amount  of  salary  due  him  in  that  capa- 
city. The  plaintiff  claimed  for  salary 
for  a  hundred  and  sixty-one  days,  at 
the  rate  of  £200  per  annum,  and  he  so 
described  his  claim  in  tlie  particulars  of 
his  demand  annexed  to  the  record.  No 
specific  contract  of  hiring  was  proved, 
but  evidence  was  given  of  the  service. 
It  appeared  that  after  the  pkintiff  had 
been  some  time  in  the  defenaant's  em- 
ployment, he  was  taken  ill,  and  went  to 

[536] 


a  hospital,  where  he  remained  three 
months.  He  did  not  return  to  his  em- 
ployment, nor  did  the  defendant  request 
him  to  do  so.  It  appeared  that  the 
plaintiff  had  been  paid  different  sums  of 
money,  but  not  at  any  fixed  or  definite 
periods.  It  was  submitted  that  upon 
this  evidence  it  must  be  taken  to  be  a 
general  hiring,  and  that  in  legal  estima- 
tion that  was  a  hiring  for  a  year,  and 
therefore  that  no  wages  were  recover- 
able, as  the  year's  service  had  not  been 
performed.  Sed  non  allocatur ;  and 
Parke,  B.,  in  giving  the  opinion  of  the 
court,  observed  :  —  "  Admitting  that 
there  was  some  evidence  of  a  hiring, 
and  agreeing  in  the  proposition  that  a 
general  hiring,  if  unexplained,  is  to  be 
taken  to  be  a  hiring  for  a  year,  I  think 
there  is  abundant  evidence  in  this  case 
to  show  that  there  was  no  hiring  for  a 
year.  It  appears  that  payments  were 
made,  but  they  were  not  made  accord- 
ing to  the  yearly  amount,  nor  at  any 
definite  periods  of  the  year.  The 
parties  separated  in  the  middle  of  the 
3'ear,  and  neither  did  the  plaintiff  re- 
turn, nor  did  the  defendant  require  him 
to  return  and  complete  the  service.  If, 
indeed,  the  jury  ought  to  have  found 
whether  this  was  a  yearly  hiring,  the 
learned  judge  should  have  been  required 
to  leave  that  question  to  them;  but  there 
is  really  nothing  to  show  that  the  com- 
pensation was  to  be  paid  at  the  end  of 
the  year."  The  presumption  of  a  year- 
ly hiring  is  not  a  presumption  of  laxc, 
but  of  fact  merely.      Cressicell,   J.,  in 


CH.  IX.] 


HIRING  OF  PERSONS. 


619 


We  are  not  aware  that  a  similar  rule  exists  in  this  country  ; 
but  where  the  wages  are  payable  at  definite  periods,  as  by 
the  week  or  by  the  month,  the  contract  for  each  period  would 
perhaps  be  considered  as  so  far  entire,  that  a  servant  leaving 
without  cause  after  the  month  had  commenced  could  not 
recover  wages  for  his  services  within  that  month  ;  and  a 
master  turning  off  his  servant  without  cause  would  be  bound 
to  pay  him  his  wages  through  the  month.  This,  however, 
may  be  doubted  unless  there  was  some  agreement  expressed 
or  distinctly  inferable  from  the  contract,  or  a  custom  or  usage 
were  proved  which  the  parties  might  be  considered  as  having 
contemplated,  (i) 


Baxter  u.  Nurse,  6  M.  &  Gr.  941,  and 
the  presumption  of  a  yearly  hiring  does 
not  arise,  where  the  services  of  the  ser- 
vant is  expressed  to  be  at  the  will  of 
either  party ;  as  where  a  boy  was  hired 
by  a  farmer,  for  his  meat  and  clothes, 
"  so  long  as  he  had  a  mind  to  stop."  Rex 
V.  Christ's  Parish,  York,  3  B.  &  C.  459. 
See  also  Rex  v.  Great  Borden,  7  B.  &  C. 
249.  There  was  formerly  a  doubt  whether 
a  contract  to  serve  during  life  was  valid, 
but  it  seems  that  such  contract  is  not 
itself  illegal.  Lord  Ahinger,  in  "Wallis 
V.  Day,  2  M.  &  W.  281.  See  farther,  1 
BI.  Com.  425,  n.  1,  Christian's  ed. 

(i)  In  England  this  doctrine  rests  on 
the  ground  that  the  parties  may  make 
the  contract  with  reference  to  general 
usage,  which  thereby  becomes  a  part  of 
the  contract.  See  Turner  v.  Robinson, 
5  B.  &  Ad.  789  ;  Ridgway  v.  Hunger- 
ford  Market  Co.  3  Ad.  &  El.  171.  In 
this  country  it  has  been  held  that  a  con- 
tract to  work  "  for  eight  months  for 
$104,  or  S13  a  month,"  was  so  far  an 
entire  contract  that  if  the  plaintiff  left 
without  cause,  before  the  eight  months, 
he  could  not  recover  for  any  part  of  tlic 
time  ;  and  although  he  had  worked 
more  than  a  month,  he  was  not  allowed 
to  recover  for  a  month,  since  there  was 
no  provision  that  he  should  be  paid 
monthly.  Reab  v.  Moor,  19  Johns.  337. 
So,  where  the  plaintiff  agreed  to  work 
for  the  defendant  ^^  seven  months,  at  Si 2 
jjcr  month,"  it  was  held  that  this  was  an 
entire  contract ;  that  $84  were  to  be 
paid  at  the  end  of  the  seven  months, 
and  not  $12  at  the  end  of  each  month  ; 
and  that  if  the  plaintiff  left  without 
good  cause,  before  the   seven  months 


were  expired,  he  could  not  recover  any 
thing  for  his  services,  although  the  de- 
fendant had  paid  a  part  during  the  con- 
tinuance of  the  service.  Davis  v.  !Max- 
well,  12  Met.  286.  In  this  case.  Hub- 
lard,  J.,  said  :  —  "In  regard  to  the  con- 
tract itself,  which  was  an  agreement  to 
work  for  the  defendant  for  seven  months, 
at  twelve  dollars  per  month,  we  are  of 
opinion  that  it  was  an  entire  one,  and 
that  the  plaintiff,  having  left  the  defend- 
ant's service  before  the  time  expired, 
cannot  recover  for  the  partial  service 
performed ;  and  that  it  differs  not  in 
principle  from  the  adjudged  cases  of 
Stark  V.  Parker,  2  Pick.  267  ;  Olmstead 
V.  Beale,  19  Pick.  528 ;  and  Thayer  v. 
Wadsworth,  19  Pick.  349  ;  Avhich  we 
are  unwilling  to  disturb,  upon  mere 
verbal  differences  between  the  contracts 
in  those  cases  and  in  this,  which  do  not 
affect  its  spirit.  The  plaintiff  has  ar- 
gued that  it  was  a  contract  for  seven 
months,  at  twelve  dollars  per  month,  to 
be  paid  at  the  end  of  each  month.  But 
however  reasonable  such  a  contract 
might  be,  it  is  not,  we  tliink,  the  con- 
tract which  is  proved.  There  is  no  time 
fixed  for  the  payment,  and  the  law  there- 
fore fixes  the  time ;  and  that  is,  in  a  case 
like  this,  the  period  when  the  service  is 
performed.  It  is  one  bargain  ;  per- 
formance on  one  part  and  payment  on 
the  other;  and  not  performance  and  full 
payment  for  the  part  performed.  The 
rate  per  month  is  stated,  as  is  common 
in  such  contracts,  as  fixing  the  rate  of 
payment,  in  case  the  contract  should  be 
given  up  by  consent,  or  death  or  other 
casualty  should  determine  it  before  its 
expiration,  without  affecting  the  right 

[587] 


520 


THE   LAW   OF  CONTRACTS. 


[book  III. 


Where  the  contract  is  for  a  time  certain,  if  the  master 
discharge  the  servant  before  the  time,  he  is  still  liable,  unless 
the  servant  have  given  cause,  by  showing  himself  unable  or 
unwilling  to  do  what  he  has  undertaken  to  do.  (j)     A  pro- 


of the  party.  Such  contracts  for  hire, 
for  definite  periods  of  time,  are  reason- 
able and  convenient,  are  founded  in 
practical  wisdom,  and  have  lonLj  re-, 
ceived  the  sanction  of  the  law.  It  is 
our  duty  to  sustain  them  when  clearly 
proved."  See  also  Eldridgc  v.  Eowc, 
2  Oilman,  91.  So  in  Nichols  v.  Coola- 
han,  10  Met.  449,  where  a  contract  was 
made  by  N.  and  C.,  that  N.  should  have 
eleven  dollars  per  month  and  board,  so 
long  as  he  should  work  for  C. ;  C.  in- 
forming N.  that  he  (C)  might  not  have 
two  days'  work  for  him.  N.  worked 
for  C.  several  months,  and  brought  an 
action  for  his  wages,  and  annexed  to 
his  writ  a  bill  of  particulars,  in  which 
he  charged  the  price  agreed  on  per 
month,  and  gave  C.  credit  for  a  certain 
sum  on  account  of  three  weeks'  sickness 
of  N.,  during  which  time  he  was  unable 
to  work.  C.  filed  in  set-off  an  account 
against  N.  for  board  during  his  sick- 
ness. Ile/d,  that  the  contract  was  a 
hiring  by  the  month ;  that  C.  was  not 
entitled  to  payment  for  N.'s  board 
during  his  sickness ;  but  that  N.  could 
not  recover  wages  during  any  part  of 
the  time  of  his  detention  from  work  by 
sickness.  —  And  wherever  the  contract 
shows  that  the  hiring  was  intended  for 
a  longer  term,  as  for  a  year,  the  mere 
reservation  of  wages  for  a  shorter  term, 
as  so  much  per  week,  or  per  month, 
will  not  control  the  hiring.  Thus, 
where  a  farm  servant  was  hired  for  a 
year,  at  three  shillings  a  week,  with 
liberty  to  go  at  a  fortnight's  notice,  the 
contract  was  held  to  be  a  hiring  for  a 
year,  the  fortnight's  notice  plainly 
showing  that  it  was  not  a  weekly  hiring. 
Eex  V.  Birdbrooke,  4  T.  R.  245.  In 
England,  in  the  hiring  of  domestic  ser- 
vants for  a  year,  there  is  generally  an 
implied  condition  arising  from  general 
custom,  that  the  contract  may  be  deter- 
mined by  a  month's  notice  to  quit,  and 
if  the  servant  leave  without  such  notice, 
and  without  the  fault  of  his  master,  he 
can  recover  nothing  for  his  services. 
See  Hartley  v.  Cummings,  5  C.  B.  247  ; 
Pilkington  v.  Scott,  15  M.  &  W.  657; 
Arc-hard  v.  Hornor,  .3  C.  &  P.  349 ;  John- 
son V.  Blenkensop,  5  Jurist,  870  ;  Now- 

[538] 


Ian  V.  Ablctt,  2  C.  M.  &  R.  54  ;  De- 
Briar  V.  Minturn,  1  Calaf.  450.  But  it 
has  been  held  in  this  country  that  where 
one  enters  into  the  service  of  employers, 
under  no  express  agreement  to  continue 
in  their  service  for  any  definite  time, 
but  with  a  knowledge  of  a  regulation 
adopted  by  them  requiring  that  all  per- 
sons employed  by  them  shall  give  them 
four  weeks'  notice  of  an  intention  to 
quit  their  service,  he  does  not  forfeit  his 
wages  by  quitting  their  service  without 
giving  such  notice;  but  he  is  liable  to 
them  for  all  damages  caused  by  his  not 
giving  the  notice  ;  and  in  a  suit  against 
them  for  his  wages,  the  amount  of  such 
damages  may  be  deducted  therefrom. 
Hunt  V.  The  Otis  Company,  4  Met. 
464. 

( j)  It  seems  that  where  a  servant  is 
hired  for  a  year,  or  other  fixed  period, 
at  an  entire  sum,  and  is  discharged  by 
his  employer,  iciihout  cause,  during  the 
term,  he  may  at  the  end  of  the  time  re- 
cover/or the  whole  time,  according  to  the 
contract.  Gandell  v.  Pontignv,  4  Camp. 
375  ;  Costigan  v.  The  Mohawk  &  Hud- 
son Railroad  Co.  2  Denio,  609  ;  Cox  v. 
Adams,  1  N.  &  McC.  284  ;  Clancey  v. 
Robertson,  2  Rep.  Con.  Ct.  404  ;  Byrd 
V.  Boyd,  4  McCord,  246.  It  seems, 
however,  that  the  action  in  such  case 
should  be  special,  and  not  for  work 
and  labor  done.  Fewings  v.  Tisdal,  1 
Exch.  295  ;  Archard  v.  Hornor,  3  C.  & 
P.  349  ;  Smith  v.  Hayward,  7  Ad.  &  El. 
544  ;  Broxham  v.  Wagstaffe,  5  Jurist, 
845;  Hartley  v.  Harman,  11  Ad.  &  El. 
798.  But  if  the  servant  obtains  M-ork 
elsewhere,  during  the  continuance  of 
the  term  for  which  he  was  originally 
employed  by  the  defendant,  this  ought, 
and  probably  would,  reduce  the  damages 
to  which  the  servant  would  otherwise 
be  entitled  by  such  wrongful  dismissal. 
Stewart  v.  Walker,  14  Penn.  293. 
And  see  Costigan  v.  The  Mohawk  & 
Hudson  R.  R.  Co.  2  Denio.  617.  Beards- 
ley,  J.;  Hoyt  V.  Wildfire,  3  Johns.  518; 
Emerson  v.  Howland,  1  Mason,  51. 
In  Ooodman  v.  Pocock,  15  Q.  B.  576, 
a  clerk  dismissed  in  the  middle  of  a 
quarter  brought  an  action  for  a  wrong- 
ful dismissal,  the  declaration  containing 


CH.  IX.] 


HIRING  OP  PERSONS. 


521 


mise  by  the  servant  to  obey  the  lawful  and  reasonable  orders 
of  his  master,  within  the  scope  of  his  contract,  is  implied  by 
law ;  and  a  breach  of  this  promise,  in  a  material  matter,  jus- 
tifies the  master  in  discharging  him.  (k) 


a  special  count  for  such  dismissal. 
The  jury  were  directed  not  to  take  into 
account  the  services  actually  rendered 
during  the  broken  quarter,  as  they  were 
not  recoverable  except  under  an  indebi- 
tatus count,  and  they  gave  damages  ac- 
cordingly. The  plaintiff  then  brought 
a  second  action  to  recover  under  an  in- 
debitattts  count  for  his  services  during 
the  broken  quarter.  It  was  held  that 
the  action  was  not  maintainable,  be- 
cause tlie  plaintiff  by  his  former  action 
on  the  special  contract  had  treated  it  as 
an  open  contract,  and  he  could  not 
afterwards  recover  under  the  indebitatus 
count  as  for  services  under  a  rescinded 
contract.  It  was  also  held,  that  in  the 
former  action  the  jury  ought  to  have 
been  directed  to  take  the  services  ren- 
dered during  the  broken  quarter  into 
account,  in  awarding  damages  under 
the  special  count  for  the  wrongful  dis- 
missal. And,  semble,  per  Patteson,  J., 
and  Erie,  J.,  that  under  an  indebitatus 
count  the  servant  wrongfully  dismissed 
before  the  termination  of  the  period  for 
which  he  was  hired  cannot  recover  his 
whole  wages  up  to  such  termination,  as 
for  a  constructive  service,  but  can  re- 
cover only  in  respect  of  his  service  up 
to  the  time  of  his  dismissal.  See  Lilley 
V.  Elwin,  11  Q.B.  755  ;  Green  v.  Hulett, 
22  Verm.  188. 

{Jc)  Per  curiam,  in  The  King  v.  St. 
John,  Devizes,  9  B.  &  C.  900.  The 
wilful  disobedience,  on  the  part  of  the 
servant,  of  any  lawful  order  of  the  mas- 
ter, is  a  good  cause  of  discharge. 
Spain  V.  Arnott,  2  Stark.  256  ;  Callo  v. 
Brouncker,  4  C.  &  P.  518;  Amor  v. 
Fcaron,  9  Ad.  &  El.  548.  See  also 
Fillieul  V.  Armstrong,  7  Ad.  &  El.  557. 
In  the  case  of  Turner  v.  Mason,  14  M. 
&  W.  112,  an  action  of  assumpsit  was 
brought  for  the  wrongful  dismissal  of 
a  domestic  servant,  without  a  month's 
notice,  or  payment  of  a  month's  wages. 
Plea,  tliat  the  plaintiff  requested  the 
defendant  to  give  her  leave  to  absent 
herself  from  his  service  during  the  niglit, 
that  he  i-efuscd  such  leave  and  forbade 
her  from  so  absenting  herself,  and  that 
against  his  will  she  nevertheless  al)sent- 
ed  herself  for  the  night,  and  until  the 


following  day,  whereupon  he  discharged 
her.  Replication,  that  when  the  plain- 
tiff requested  the  defendant  to  give  her 
leave  to  absent  herself  from  his  service, 
her  mother  had  been  seized  with  sudden 
and  violent  sickness,  and  was  in  immi- 
nent danger  of  death,  and  believing 
herself  likely  to  die,  requested  the  plain- 
tiff to  visit  her  to  see  her  before  her 
death,  whereupon  tlie  plaintiff  requested 
the  defendant  to  give  her  leave  to  ab- 
sent herself  for  that  purpose,  she  not 
being  likely  thereby  to  cause  any  in- 
jury or  hindi'ance  to  his  domestic  affairs, 
and  not  intending  to  be  tliereby  guilty 
of  any  improper  omission  or  unreason- 
able delay  of  her  duties  ;  and  because 
the  defendant  M'rongfuUy  and  unjustly 
forbade  her  from  so  absenting  herself 
for  the  purpose  of  visiting  her  mother, 
&c.,  she  left  his  house  and  service,  and 
absented  herself  for  that  purpose  for  the 
time  mentioned  in  the  plea,  the  same 
being  a  reasonable  time  in  that  behalf, 
and  she  not  causing  thereby  any  hin- 
drance to  his  domestic  affairs,  nor  be- 
ing thereby  guilty  of  any  improper 
omission  or  unreasonable  delay  of  iier 
duties,  as  she  lawfully  might,  &c.  Held, 
on  demuiTcr,  that  the  plea  was  good,  as 
showing  a  dismissal  for  disobedience  to 
a  lawful  order  of  the  master,  and  that 
the  replication  was  bad,  as  showing  no 
sufficient  excuse  for  such  disobedience. 
So  where  tlie  servant  assaulted  his  em- 
ployer's servant  maid,  with  intent  to 
commit  a  rape  upon  her.  Atkin  v. 
Acton,  4  C  &  P.  208.  Or  commits 
any  crime,  though  the  same  be  not  im- 
mediately injurious  to  his  employer. 
Libhart  v.  AVood,  1  W.  &  S.  2G5.  '  So 
where  an  unmarried  female  servant  be- 
comes pregnant,  liex  v.  Brampton, 
Caldecott,  11,  14.  So  using  abusive 
language  to  his  employer.  Byrd  v. 
Boyd,  4  McCord,  246.  Or  quarrels 
with  a  fellow  clerk  in  the  store,  in  tlie 
presence  of  ladies,  and  draws  a  revolver. 
Kearncr  v.  Holmes,  6  Louis.  Ann.  373. 
Or  is  guihy  of  any  misconduct,  incon- 
sistent with  the  relation  of  master  and 
servant.  Singer  v.  McCormick,  4  W. 
&  S.  265.  As  if  the  servant  set  up  a 
claim  to  be  a  partner  with  Ids  employer. 

[539] 


522 


THE  LAW   OP   CONTRACTS. 


BOOK  III. 


If  the  contract  be  for  a  time  certain,  and  the  servant  leave 
without  cause  before  the  tinne  expires,  it  has  been  held  in 
many  cases,  in  England  and  in  this  country,  that  he  has  no 
claim  for  the  services  he  has  rendered.  (/)     Some    of  these 


Amor  V.  Fearon,  9  Ad.  &  El.  548.  Or 
conduct  so  as  materially  to  injure  his 
employer's  business.  Lacy  v.  Osbal- 
diston,  8  C.  &  K.  80.  Or  is  guilty  of 
repeated  intoxication  ;  semhle,  Wise  v. 
Wilson,  1  C.  &  K.  662.     ' 

(/)  If  this  question  is  to  be  governed 
solely  by  the  number  of  authorities,  it 
would  seem  to  be  at  rest,  for  it  is  sup- 
ported by  the  following  adjudged  cases: 
Cutter  r.  Powell,  6  T.  II.  320';  Lilley 
r.  Elwin,  11  Q.  B.  755  ;  Stark  v. 
Parker,  2  Pick.  267  ;  McMillan  v.  Van- 
derlip,  12  Johns.  165;  Jennings  v. 
Camp,  13  Johns.  94  ;  Reab  v.  Moor,  19 
Johns.  337;  Waddington  v.  Oliver,  5 
B.  &  P.  61  ;  Ellis  v.  Hamlen,  3  Taunt. 
52;  Marsh  v.  Rulesson,  1  Wend.  514; 
Faxon  v.  Mansfield,  2  Mass.  147  ;  Lan- 
try  V.  Parks,  8  Cow.  63  ;  Ketchum  v. 
Evertson,  13  Johns.  365  ;  Sickels  v. 
Pattison,  14  Wend.  257  ;  Weeks  v. 
Leighton,  5  New  Hamp.  343;  Olmstead 
V.  Beale,  19  Pick.  528  ;  Thayer  i'.  Wads- 
worth,  19  Pick.  349  ;  St.  Alban's  Steam- 
boat Co.  y.  Wilkins,  8  Verm.  54  ;  Davis 
V.  Maxwell.  12  Met.  286  ;  Hunt.  v.  Otis 
Man.  Co.  4  Met.  465;  Winn  v.  South- 
gate,  17  Verm.  355;  Sutton  v.  Tyrell, 
12  Verm.  79;  Ripley  v.  Chipman,  13 
Verm.  268  ;  Coe  v.  Smith,  1  Cart. 
(Ind.)  267  ;  Swift  v.  Williams,  2  Carter, 
365  ;  Hawkins  v.  Gilbert,  19  Ala.  54. 
Nor  does  it  make  any  difference  in  this 
respect  whether  the  wages  are  esti- 
mated at  a  gross  sum,  or  are  to  be 
calculated  according  to  a  certain  rate 
per  week  or  month,  or  are  payable 
at  certain  stipulated  times,  provided 
the  servant  agree  for  a  definite  and 
whole  term  ;  such  an  arrangement 
being  perfectly  consistent  with  the  en- 
tirety of  the  contract.  Davis  v.  Max- 
well, li2  Met.  286.  The  law  on  this 
point  was  fully  affirmed  in  the  late  case 
of  Winn  v.  Southgatc,  17  Verm.  355. 
It  was  there  held  that  if  one  contract  to 
labor  for  another  for  a  specified  term, 
and  leave  the  service  of  his  employer 
before  the  expiration  of  the  term,  with- 
out any  cause,  attributable  either  to  the 
employer  or  to  the  act  of  providence, 
he  cannot  recover  any  compensation 
for  the  portion    of   the    term    during 

[540] 


whicii  he  in  fact  labors.  And  it  makes 
no  difference  that  the  employer,  before 
the  expiration  of  the  term,  permitted 
the  plaintiff  to  be  absent  from  his  em- 
ployment for  a  few  weeks  upon  a  jour- 
ney,—  the  plaintiff  having,  after  his  re- 
turn, again  resumed  labor  for  his  em- 
ployer, under  the  contract.  Nor  does 
it  make  any  difference,  that  the  plain- 
tiff ceased  laboring  for  his  employer, 
nnder  the  belief  that,  according  to  the 
legal  method  of  computing  time,  under 
similar  contracts,  he  had  continued  la- 
boring as  long  as  could  be  required  of 
him.  Nor  that  the  employer,  during 
the  term,  has  from  time  to  time  made 
payments  to  the  plaintiff  for  his  labor. 
But  if,  in  such  case,  the  defendant  have 
made  payments  to  the  plaintiff  upon 
the  contract,  during  the  term,  and  the 
plaintiff,  having  commenced  an  action 
of  book  account  to  recover  for  his  ser- 
vices, is  defeated,  upon  the  ground  that 
he  left  the  service  of  the  defendant, 
without  legal  cause,  before  the  expira- 
tion of  the  term,  the  defendant  can  have 
no  recovery  against  the  plaintiff  for  the 
amount  of  payments  thus  made.  See 
also  Rice  v.  The  Dwight  Man.  Co.  2 
Cush.  80,  where  it  is  again  held  that  if 
A.  enter  into  the  service  of  B.  upon  an 
agreement  to  labor  for  him  a  year,  and 
leave  at  the  end  of  six  months,  A.  can 
maintain  no  action  for  the  services  so 
rendered ;  but  if  B.  then  promise  A.  to 
pay  him  for  the  six  months'  labor,  upon 
the  performance  of  any  additional  ser- 
vice, however  slight,  or  the  doing  of 
some  act  by  A.,  to  his  personal  incon- 
venience, though  of  no  value  to  B.,  and 
such  service  is  rendered,  or  act  done, 
this  will  so  far  operate  as  a  waiver  of 
the  original  contract  that  an  action  may 
be  maintained  by  it  for  the  six  months' 
labor.  That  an  offer  to  pay,  by  the 
employer,  is  a  waiver  of  all  forfeiture, 
see  also  Seaver  v.  Morse,  20  Verm.  620. 
So  where  the  employer  gives  the  laborer 
a  note,  before  the  time  for  which  he 
was  hired  has  elapsed,  for  the  amount 
of  wages  already  earned,  be  cannot  re- 
sist payment  thereof  by  showing  that 
the  payee  left  his  service  before  the  ex- 
piration of  the  time  for  which  he  was 


CH.   IX. 


HIRING   OF  PERSONS. 


523 


cases  are  of  great  severity ;  as  where  the  hiring  was  for  a 
year,  and  after  ten  months  and  a  half  the  servant  went  away, 
saying  he  would  work  no  more  for  that  master,  and  after  two 
days  returned  and  offered  to  fulfil  his  contract,  and  the  mas- 
ter refused  to  receive  him,  it  was  held  that  the  servant  could 
recover  no  wages   for  the  time  he    had  worked,  {m)     The 


originally  hired.  Thorpe  v.  White,  13 
Johns.  5.3.  See  also  Hayden  v.  Madi- 
son, 7  Grecnl.  76.  The  rule  before  ad- 
verted to  as  to  entire  performance  is 
not  binding  upon  persons  under  the  age 
of  twenty-one  j-ears,  and  although  they 
engage  to  work  a  specified  time,  and 
for  a  speciticd  sum,  they  may  neverthe- 
less leave  wlien  they  please,  and  reco- 
ver upon  a  quantum  meruit  for  what 
their  services  are  really  worth.  Moses 
V.  Stevens,  2  Tick.  332;  Judkitis  v. 
Walker,  17  Maine,  38;  Bishop  r.  Shep- 
herd, 23  Pick.  492 ;  Vent  v.  Osgood, 
19  Pick.  572;  Thomas  v.  Dike,  11 
Verm.  273;  Medbury  v.  Watrous,  7 
Hill,  110;  Whitmarsh  v.  Hall,  3  Denio, 
375 :  deducting,  it  seems,  any  damage 
to  his  employer  by  such  violation  of  the 
contract.  Thomas  v.  Dike,  11  Verm. 
273;  Moses  v.  Stevens,  2  Pick.  332; 
Judkins  v.  Walker,  17  Maine,  38.  But 
see  contra,  Whitmarsh  v.  Hall,  3  Denio, 
375,  where  the  subject  was  fully  con- 
sidered, and  Jeicett,  J.,  observed  upon 
this  point: — "It  is  insisted  on  the  part 
of  the  defendants  that  the  justice  erred 
in  rejecting  the  evidence  offered  by 
them,  on  the  ground  that,  although  the 
plaintifif"  was  an  infant,  and  had  a  riglit 
to  avoid  his  contract  and  recover  the 
value  of  his  services,  yet  that  the  de- 
fendants were  entitled,  if  they  had  sus- 
tained au  injury  by  such  avoidance,  to 
have  a  proper  allowance  therefor  made 
against  such  value.  In  other  words,  it 
is  claimed  that  the  defendants  are  enti- 
tled, as  a  set-off  against  the  value  of  the 
plaintiff's  services,  to  such  sum  as  is 
equal  to  the  amount  of  the  injury  sus- 
tained by  them,  by  the  avoidance  of  the 
contract  by  the  plaintiff,  which  in  effect 
would  charge  the  infant  with  the  per- 
formance of  his  contract,  or  with  dama- 
ges for  its  violation.  The  proposition 
is  not  sustained  by  any  elementary  prin- 
ciple known  to  the  law,  and  I  do  not 
find  that  it  has  been  recognized  by  any 
adjudged  case,  unless  by  that  of  Moses 
r.  Stevens,  2  Pick.  332.  In  that  case 
the  plaintiff,  an  infant,  had  made  a  spc- 

VOL.   I.  46 


cial  agreement  to  labor  for  the  defend- 
ant a  certain  time  for  certain  wages, 
and  before  the  time  expired  left  his  ser- 
vice voluntarily,  without  cause.  It  was 
held  that  he  might  recover  on  a  quantum 
meruit  for  the  services  performed,  and  if 
his  employer  was  injured  by  the  sudden 
termination  of  the  contract  without  no- 
tice, a  deduction  should  be  made  on 
that  account.  The  learned  judge,  in 
delivering  the  opinion  of  the  court, 
said:  — '  We  think  the  special  contract 
being  avoided,  an  indebitatus  assumpsit 
upon  a  quantum  meruit  lies,  as  it  would 
if  no  contract  had  been  made ;  and  no 
injustice  will  be  done,  because  the  jury 
will  give  no  more  than,  under  all  cir- 
cumstances, the  services  were  worth, 
making  any  allowance  for  any  disappoint- 
ment, amounting  to  an  injury,  which  the 
defendant  in  such  case  would  sustain  by  the 
avoidance  of  the  contract.'  With  great 
respect,  I  am  unable  to  yield  my  assent 
to  the  soundness  of  the  qualification 
annexed  to  the  proposition.  I  think 
that  the  infant  plaintiff,  in  such  an 
action,  is  entitled,  by  well  settled  prin- 
ciples of  law,  to  recover  such  sum  for 
his  services  as  he  would  be  entitled  to 
if  there  had  been  no  express  contract 
made.  A  recovery  is  allowed  upon  the 
assumption  that  there  is  no  express 
contract  at  all."  But  in  the  case  of 
Moulton  V.  Trask,  9  Met.  577,  decided 
since  Whitmarsh  v.  Hall,  it  was  held 
that  where  a  minor  makes  a  contract, 
cither  absolute  or  conditional,  to  labor 
for  a  year,  for  one  hundred  dollars,  and 
his  employer,  without  sufKcient  cause, 
discharges  him  before  the  year  expires, 
indebitatus  assumpsit  may  be  maintained 
for  the  minor's  wages  for  the  time  dur- 
ing which  he  labored ;  and  his  employer 
is  bound  to  pay  at  the  rate  of  one  Iiun- 
dred  dollars  a  year,  deducting  any  loss 
that  he  may  have  sustained  from  the 
minor's  unfaithfulness,  or  occasional  ab- 
sence without  leave.  Sec  also  ante,  p. 
2G3,  n.  (/) 

(m)  Lantry  v.  Parks,  8  Cowen,  63. 
[541] 


524' 


THE   LAW   OF   CONTRACTS. 


[book   III. 


ground  taken  in  these  cases,  and  on  which  they  all  seem  to 
rest,  is  the  entirety  of  the  contract,  which  is  supposed  to  pre- 
vent any  apportionment  of  the  wages.  And  it  has  been  held 
that  the  *  servant  cannot  recover  if  he  left  because  the  master 
required  of  him  services  different  from  those  specified  in  the 
contract,  if  he  made  no  objection  thereto,  (n)  But  if  pre- 
vented from  performing  the  stipulated  amount  of  labor  by 
sickness,  or  similar  inability,  he  may  recover  pay  for  what  he 
has  done  on  a  quantum  meruit,  (o) 

The  case  of  Britton  v.  Turner,  6  New  Hamp.  R.  481,  (p) 


(n)  Unir  v.  Bell,  6  Verm.  35;  Mul- 
len V.  Gilkinson,  19  Verm.  503.  See 
also  De  Camp  v.  Stevens,  4  Blackf.  24. 
In  this  case  a  person  contracted  to  work 
for  a  year,  at  a  certain  sum  per  month ; 
but  after  woi'king  three  months  and  ten 
days,  he  left  his  employer,  and  sued 
him  for  the  work  thus  done.  It  was 
proved  that  the  defendant  had  mani- 
fested a  disposition  to  get  the  plaintitF 
to  leave  him,  and  had  said,  after  the 
plaintiff  was  gone,  that  he  was  glad  of 
it,  as  the  plaintiff  was  worth  nothing. 
Held,  that  the  action  was  not  sustained. 

(o)  Dickey  v.  Linscott,  20  Maine, 
453 ;  Fcnton  v.  Clark,  1 1  Verm.  557. 
In  this  case,  Bennett,  J.,  in  giving  the 
opinion  of  a  majority  of  the  court,  ob- 
served :  —  "In  the  case  before  the  court, 
the  plaintiff  contracted  with  tiie  defend- 
ant to  labor  personally  for  him  for  four 
months,  at  ten  dollars  per  month,  and 
by  the  terms  of  the  contract,  was  to  re- 
ceive no  pay  till  he  had  worked  the  four 
months.  These  services  being  of  a  per- 
sonal character,  the  contract  could  not 
be  performed  by  another,  and  as  the 
plaintiff  was  disabled  to  perform  it  him- 
self, by  reason  of  sickness,  v.'hich  was 
the  act  of  God,  upon  the  authority  of 
the  foregoing  cases,  the  contract  was 
discharged.  The  inquiry  then  arises, 
■what  is  the  result  ?  It  appears  to  me 
apparent  that  the  jilaintiff  must,  at  least 
after  the  expiration  of  the  four  months, 
be  permitted  to  recover  as  upon  a  quan- 
tum meruit,  pro  rata,  for  the  services  ren- 
dered. Common  justice  requires  tliis, 
and  I  should  be  sorry  to  find  that  it  was 
not  tolerated  by  the  ]irinciplcs  of  the 
common  law.  To  hold,  in  a  case  like 
this,  where  the  plaintiff  has  been  dis- 
charged of  his  contract  by  the  act  of 
God,  that  there  can  be  no  apportion- 
ment, upon  the  technical  ground   that 

[542] 


the  contract  is  entire,  and  its  perform- 
ance a  condition  precedent,  is,  to  my 
mind,  leaving  the  substance  and  ad- 
hering to  the  shadow."  liedjield,  J., 
dissented.  See  also  Seaver  v.  Morse. 
20  Verm.  620.  In  this  case  the  plain- 
tiff, having  contracted  to  labor  for  the 
defendant  six  months,  at  a  specified 
price  for  the  term,  was  taken  unwell, 
and  left  the  defendant's  service,  and 
was  so  unwell,  for  about  a  month,  that 
he  was  unable  to  perform  the  full  labor 
of  a  man,  and  then  he  recovered  his 
health,  but  did  not  return  to  the  defend- 
ant's employment.  It  was  held  that  he 
was  entitled  to  recover  for  his  services, 
upon  a  quantum  meruit,  for  the  lime  he 
labored.  And  it  was  also  htkl  that,  if  this 
were  not  so,  an  offer  by  the  defendant, 
after  the  plaintiff  had  left  his  service, 
to  pay  the  plaintift'  the  amount  due 
to  him,  at  the  rate  of  compensation 
fixed  by  the  original  contract,  was  a 
waiver  of  all  claim  of  forfeiture.  To 
the  same  effect  is  Fuller  v.  Brown,  11 
Met.  440,  where  a  special  agreement 
was  made  by  A.  and  B.,  that  A.  should 
work  for  B.,  and  that,  if  he  should  be 
dissatisfied,  and  wish  to  leave  the  ser- 
vice, he  should  give  B.  four  weeks  no- 
tice, and  work  for  him  four  weeks  after 
the  notice,  and  then  receive  his  pay. 
After  A.  had  begun  to  work  under  this 
agreement,  he  became  sick  and  unable 
to  work,  and  left  B.  without  giving  four 
weeks  notice,  and  remained  sick  for 
several  weeks,  field,  that  this  agree- 
ment as  to  notice  applied  to  a  voluntary 
leaving  of  the  service  by  A.,  and  not  to 
a  leaving  by  reason  of  bis  sickness  and 
inability  to  continue  therein ;  and  that 
he  was  entitled  to  recover  a  jnoper 
compensation  for  the  work  which  he 
had  done. 
(p)  In  this   case  the  whole  subject 


CH.    IX.] 


HIRING  OF   PERSONS. 


'525 


resists  the  whole  doctrine  of  these  cases,  and  permits  the 
*  servant  to  recover  on  a  quantum  meruit.  His  right  to  recover 
is  carefully  guarded  in  this  case  by  principles  which  seem  to 
protect  the  master  from  all  wrong;  and  to  require  of  him 
only  such  payment  as  is  justly  due  for  benefits  received  and 
retained,  and  after  all  deduction  for  any  damage  he  may 
have  sustained  from  the  breach  of  the  contract.  So  guarded, 
it  might  seem  that  the  principles  of  this  case  are  better 
adapted  to  do  adequate  justice  to  both  parties,  and  wrong  to 
neither,  than  those  of  the  numerous  cases  which  rest  upon 


was  fully  and  abl 3' examined  by  Pnrtcr, 
J.,  and  the  court  came  to  the  follow- 
ing^ conclusions,  which  the  American 
Editor  of  Chitty  on  Contracts  regards 
as  "  manifestly  just  and  sensible."  1. 
Where  a  party  undertakes  to  pay,  upon 
a  special  contract  for  the  performance 
of  labor,  lie  is  not  liable  to  be  charged 
upon  such  special  contract  until  the  mo- 
ney is  earned  according  to  the  terms  of 
the  agreement;  and  where  the  parties 
have  made  an  express  agreement,  the 
law  will  not  imply  and  raise  an  agree- 
ment different  from  that  wliich  the  par- 
ties have  entered  into,  cxeejit  upon 
some  farther  transaction  between  them. 
2.  In  case  of  a  failure  to  perform  such 
special  contract,  by  default  of  the  party 
contracting  to  do  the  service,  if  the  mo- 
ney is  not  due  by  the  terms  of  the  spe- 
cial agreement,  and  the  nature  of  the 
contract  is  such  that  the  employer  can 
reject  what  has  been  done,  and  refuse 
to  receive  any  benefit  from  the  part  per- 
formance, he  is  entitled  to  do  so,  unless 
he  has  before  assented  to  and  accepted 
of  what  has  been  done,  and  in  such  case 
the  party  performing  the  labor  is  not 
entitled  to  recover,  however  much  he 
may  have  done.  3.  But  if,  upon  a  con- 
tract of  such  a  character,  a  party  actual- 
ly receives  useful  labor,  ;«id  thereby 
derives  a  benefit  and  advantage,  over 
and  above  tlie  damage  which  has  result- 
ed from  the  breach  of  the  contract  by  the 
other  party,  the  labor  actually  done  and 
the  value  received  furnish  a  new  con- 
sideration, and  the  law  thereupon  raises 
a  promise  to  pay  to  tlic  extent  of  tlic 
reasonable  worth  of  the  excess.  And 
the  rule  is  the  same,  whether  tlic  labor 
was  received  and  accepted  by  the  assent 
of  the  party  prior  to  the  breach,  and 
under  a  contract  by  which,  from  its  na- 
ture, the  party  was  to  receive  the  labor 


from  time  to  time  until  the  completion 
of  the  whole  contract,  or  whether  it 
was  received  and  accepted  by  an  assent 
subsequent  to  the  performance  of  all 
that  was  in  fact  done.  4.  In  case  such 
contract  is  broken,-  by  the  fault  of  the 
party  employed  after  part  performance 
lias  been  received,  the  employer  is  enti- 
tled, if  he  so  elect,  to  put  the  breach  of 
contract  in  defence  for  the  purpose  of 
reducing  the  damages,  or  showing  that 
nothing  is  due,  and  tiie  benefit  for 
wliicli  he  is  liable  to  be  charged,  in  that 
case,  is  the  amount  of  value  whicii  he 
has  received,  if  any,  beyond  the  amount 
of  damage,  and  the  implied  promise 
which  the  law  will  raise  is  to  pay  such 
amount  of  the  stipulated  price  for  the 
whole  labor  as  remains,  after  deducting 
what  it  would  cost  to  procure  a  comple- 
tion of  the  whole  service,  and  also  any 
damage  which  has  been  sustained  by  rea- 
son of  the  non-fulfilment  of  the  contract. 
5.  If  in  such  case  it  be  found  that  the  da- 
mages are  equal  to  or  greater  than  the 
amount  of  the  value  of  the  labor  per- 
formed, so  that  the  employer,  having  a 
right  to  the  perforijiance  of  the  whole 
contract,  has  not,  upon  the  whole  case, 
received  a  beneficial  service,  the  plain- 
tiff cannot  recover.  6.  If  the  employer 
elects  to  permit  himself  to  be  charged 
for  the  value  of  the  labor,  without  in- 
terposing the  damages  in  dcfo-nce,  he  is 
entitled  to  do  so,  and  may  have  an 
action  to  recover  his  damages  for  the 
non-performance  of  the  contract.  7.  If 
he  elects  to  have  the  damages  consider- 
ed in  the  action  against  him,  he  must 
be  understood  as  conceding  that  they 
are  not  to  be  extended  beyond  the 
amount  of  what  he  has  received,  and 
he  cannot  therefore  afterwards  sustain 
an  action  for  further  damages. 

[543] 


526' 


THE  LAW   OP   CONTRACTS. 


[book   III. 


the  somewhat  technical  rule  of  the  entirety  of  the  contract. 
It  is  certain,  however,  that,  since  this  case  was  reported,  the 
*same  question  has  been  again  considered  in  other  courts, 
and  decided  in  conformity  with  the  earlier  decisions,  (q) 

On  the  same  principle  of  entirety  of  contract,  it  is  held 
that  if  a  servant  is  discharged  for  misconduct  during  the  cur- 
rency of  a  quarter,  he  is  entitled  to  no  wages  from  the  begin- 
ning of  that  quarter,  although  he  did  not  misbehave  until  the 
day  when  discharged,  (r)  But  if  the  contract  be  dissolved 
by  mutual  consent,  he  may  recover  wages  p7'o  rata,  without 
any  express  contract  to  that  effect,  [s)  and  so  he  may  if  he 
leave  for  justifiable  cause,  [ss)  If  a  justifiable  cause  for 
dismissal  exists,  he  cannot  recover,  although  not  dismissed 
expressly  on  that  ground,  {t)  and  even  although  the  master 
did  not  know  of  its  existence  at  the  time,  [tt)  And  if  the 
servant,  by  his  misconduct,  forfeits  his  claim  for  wages,  a 
subsequent  promise  of  the  master  to  pay  the  wages  has  been 
said  to  be  void  foj  want  of  consideration,  {u) 


[q)  The  case  of  Britton  r.  Turner 
was  cited  and  alluded  to  by  the  court, 
in  giving  the  opinion,  in  the  subsequent 
case  of  Olmstead  v.  Beale,  19  Pick.  529, 
but  Morton,  J.,  who  there  delivered  the 
opinion  of  the  court,  said  : — •'  We  have 
no  hesitancy  in  adhering  to  our  own 
decisions,  supported  as  they  are  by 
principle,  and  a  long  series  of  adjudi- 
cations." On  the  other  hand,  the  prin- 
ciples of  Britton  v.  Turner  were  clearly 
approved  by  Bennett,  J.,  in  delivering 
the  opinion,  in  Fenton  v.  Clark,  11 
Verm.  560.  The  Court  of  Vermont 
seems  in  other  cases  inclined  to  con- 
strue all  entire  contracts  of  labor  and 
service  equitably  for  the  laborer,  and 
to  hold,  where  the  employer  has  re- 
ceived benefit  from  the  servant's  labor, 
and  the  parties  cannot  be  placed  in  statu 
quo,  that  the  employer  is  liable  on  a 
quantum  meruit  for  the  labor  actually 
performed,  although  the  contract  was 
not  performed  exactly  as  agreed.  See 
Oilman  v.  Hall,  11  Verm.  510;  and 
Blood  V.  Enos,  12  Verm.  625.  See  n. 
(o.)  p.  524,  and  also  n.  (/,)  p.  522. 

(r)  Atkin  v.  Acton.  4  C.  &  P.  208 ; 
Ridgway  r.  llungerford  Market  Co.  3 
Ad.  &  El.  171 ;  Turner  v.  Robinsons,  6 
C.  &  P.  15,  2  N.  &  M.  S29.  See  ahso 
Spotswood  V.  Barrow,  5  Exch.  110; 
and  Lush  v.  Russell,  5  Exch.  203. 
[544] 


(s)  Thomas  v.  Williams,  1  Ad.  & 
El.  685;  Hill  v.  Green,  4  Pick.  114. 
Whether  the  contract  has  been  rescind- 
ed is  a  question  for  the  jury.  Lamburn 
V.  Cruden,  2  M.  &  G.  253.  In  this 
case  a  servant  was  engaged  at  a  yearly 
salary,  payable  quarterly.  A  month 
after  the  termination  of  one  of  the  years 
of  the  service  the  servant  tendered  his 
resignation.  After  another  month  the 
resignation  was  accepted,  nothing  being 
said  about  remuneration  for  tlie  time 
elapsed  since  the  termination  of  the  last 
year's  service.  It  was  held  that  the  law 
implied  no  engagement  to  pay  for  the 
services  performed  since  the  last  quar- 
ter; but  that,  under  the  circumstances 
of  this  case,  it  ought  to  have  been  left 
to  the  jury  to  say  whether  tlie  parties 
had  come  to  an  agreement  that  those 
services  should  be  paid  for. 

(ss)  Patterson  v.  Gage,  23  Verm.  558. 

{t)  Ridgwav  t-.  Hunserford  Market 
Co.  3  Ad.  &  El.  171  ;  Cussons  i-.  Skin- 
ner, 11  M.  &  W.  161  ;  Baillie  v.  Kell,  4 
Bing.  N.  C.  638.  See  also  !Mcrccr  v. 
Whall,  5  Q.  B.  457,  Lord  Denman. 

_{it)  Spotswood  V.  Barrow,  5  Exch. 
110;  Willets  v.  Green,  3  Carr.  &  Kir. 
59. 

(u)  This  point  was  decided  in  the 
case  of  Mockraan  r.  Shepherdson,  3  P. 
&  D.  182.    But  it  is  to  be  observed  that 


CH.   IX.] 


HIRING   OF   PERSONS. 


527 


Where  the  servant  is  wrongfully  dismissed  during  a  quar- 
ter, or  other  definite  term,  he  may,  after  the  quarter  or  term 
ends,  recover  for  the  whole,  in  an  action,  not  for  work  and 
labor,  but  for  preventing  him  from  doing  his  work,  (y) 

It  should  seem  from  the  decisions  that  a  master  is  not 
bound  to  provide  medical  attendance  or  medicines  for  his 
farm  servant,  or  his  house  servant,  in  case  of  illness ;  even  if 
this  be  caused  by  an  accident  occurring  while  he  was  in  the 
discharge  of  his  duty,  (iv)  -But  it  is  also  held  that  if  he  does' 
send  for  a  physician  he  is  not  only  liable  himself,  but  cannot 
deduct  the  charge  from  the  wages  of  the  servant  without  an 
express  agreement  to  that  effect,  (x)      The  master  is  bound 


in  that  case  there  was  an  express  agree- 
ment between  the  parties  that,  if  the 
servant  should  get  drunk  any  time  dur- 
ing the  service,  he  should  forfeit  all  his 
wages  up  to  that  time.  The  case  of 
Seaver  v.  Morse,  20  Verm.  620,  is  an 
authority  for  holding  that  a  forfeiture 
of  wages,  incurred  by  a  failure  to  per- 
form an  entire  contract,  is  waived  by  a 
subsequent  promise  of  the  employer  to 
pay  such  wages,  although  the  promise 
is  made  without  any  new  consideration. 
See  also  ante,  p.  522,  n.  (/.) 

(v)  The  earlier  cases  seem  to  have 
allowed  a  recovery  in  such  case,  on  a 
common  count  for  work  and  labor  done. 
Gandall  v.  Pontigny,  4  Camp.  375  ; 
Eardly  v.  Price,  5  B.  &  P.  333  ;  Smith 
V.  Kingsford,  3  Scott,  279  ;  Collins  v. 
Price,  2  M.  &  P.  233.  But  the  more 
recent  authorities  have  established  the 
better  principle,  that  tlic  balance  due 
for  work  actually  performed,  at  the  time 
of  such  Avrongful  dismissal,  may  be  re- 
covered on  the  common  counts,  while 
there  must  be  a  special  count  for  the 
amount  of  the  montivs  wages,  which  has 
not  been  earned  ;  or,  to  speak  more  cor- 
rectly, for  the  recovery  of  damages  for 
the  wrongful  dismissal,  a  month's  wages 
being  the  measure  of  damages  for  such 
breach  of  contract.  See  Archard  v. 
Horner,  3  C.  &  P.  349;  I>;wings  v. 
Tisdal,  1  Exch.  295  ;  Broxham  v.  Wag- 
staffc,  5  Jur.  845 ;  Smith  v.  Ilavward, 
7  Ad.  &  El.  544;  Hulle  v.  Heightinan, 
2  East,  145.  See  Lillcy  v.  Elwin,  11 
Q.  B.  755.  In  such  case  the  wages  due 
at  the  time  of  dismissal  cannot  be  re- 
covered under  such  special  count  : 
there  must  be  a  count  for  work  and 

46* 


labor  done ;  and  these  may  be  joined 
in  the  same  declaration.  Hartley  v. 
Harman,  11  Ad.  &  El.  798.  But  see 
Goodman  r.  Pocock,  15  Q.  B.  576.  See 
also  ante,  p.  520,  n.  (  /) 

{iv)  The  contrary  opinion  was  once 
declared  by  Lord  Kenyan,  in  Scarman 
V.  Castell,  1  Esp.  270,  but  this  doctrine 
has  long  since  been  overruled.  Sec 
Selien  v.  Norman, 4  C.  &  P.  80;  Cooper 
V.  Phillips,  4  C.  &  P.  581.  In  Dunbar 
V.  Williams,  10  Johns.  249,  it  is  said 
that  no  action  lies  by  a  physician  for 
medicine  administered  to,  and  attend- 
ance on,  a  slave,  without  the  knowledge 
or  request  of  the  master,  in  a  case  not 
requiring  instant  and  immediate  assist- 
ance. But,  it  seims,  that  if  medical  or 
other  assistance  be  rendered  to  a  slave 
in  case  of  such  pressing  necessity  as  not 
to  admit  of  a  previous  application  to  the 
master,  the  person  rendering  the  as- 
sistance would  be  entitled  to  recover  a 
compensation  from  the  master  on  the 
implied  assumpsit,  arising  from  the  legal 
obligation  of  the  master  to  make  the 
requisite  provision  for  his  slave.  And 
in  England  a  master  is  liable  to  pro- 
vide medical  attendance  for  his  appren- 
tice.    Eegina  v.  Smith,  8  C.  &  P.  153. 

(.r)  Scllen  v.  Norman,  4  C.  &  P.  80; 
Emmons  v.  Lord,  18  Maine,  351.  It 
would  seem  that  he  cannot  deduct  the 
servant's  wages  during  the  time  he  was 
sick  and  unable  to  work.  Story  on 
Cont.  §  962,  /,  k,  and  cases  cited.  In 
Nichols  r.  Co'olahan,  10  Met.  449,  a  con- 
tract was  made  by  N.  &  C.  that  N, 
should  have  eleven  dollars  jier  month 
and  board,  so  long  as  lie  should  work 
for  C,  C.  informing  N.  that  he  (C.) 
[545] 


528 


THE   LAW   OF    CONTRACTS. 


BOOK  III. 


to  take  proper  care  of  his  servant,  and  not  expose  him  to 
danger,  (//)  but  he  is  not  responsible  for  an  accident  hap- 
pening in  the  course  of  his  service,  unless  the  master  knew 
that  it  exposed  the  servant  to  peculiar  danger,  and  the  servant 
did  not.  (z) 

It  has  been  held  that  a  master  who  uses  due  care  in  the 
selection  and  employment  of  his  servants,  is  not  responsible 
to  one  of  them  for  an  injury  received  from  the  carelessness 
of  another  while  employed  in  the  master's  service,  [zz)     But 


might  not  have  two  days  work  for  him. 
N.  worlced  for  C.  several  months,  and 
brought  an  action  for  his  wages,  and 
annexed  to  his  writ  a  bill  of  particulars, 
ia  which  he  charged  the  price  agreed  on 
per  montli.  and  gave  C.  credit  for  a  cer- 
tain sum  on  account  of  three  weeks 
sickness  of  N.,  during  which  time  he 
was  unable  to  work.  C.  filed  in  set-off 
an  account  against  N.  for  board  during 
his  sickness ;  it  was  held  that  the  con- 
tract was  a  hiring  bj"-  the  month,  that 
C.  was  not  entitled  to  payment  for  N.'s 
boai-d  during  his  sickness ;  but  that  N. 
could  not  recover  wages  for  any  part  of 
the  time  of  liis  detention  from  work  by 
sickness.  "Another  question,"  Huhhard, 
J;  remarked,  "  might  have  been  raised 
on  this  contract,  viz.,  whether  the  plain- 
tiff might  not  have  been  entitled  to  pay- 
ment for  his  whole  time ;  but  by  credit- 
ing the  loss  of  time  he  has  precluded 
that  inquiry,  and  is  properly  bound  by 
his  admission."  Nor,  without  a  specific 
agreement  to  that  effect,  can  the  master 
deduct  the  value  of  articles  injured  or 
lost  by  the  servant;  but  must  bring  a 
cross  action  therefor.  Le  Loir  v.  Bris- 
tow,  4  Camp.  134.  But  see  Snell  v. 
The  Independence,  Gilpin,  40  ;  The 
New  Phoenix,  2  Hagg.  Adm.  420.  If 
the  servant  is  an  infant,  the  master  may 
deduct  from  his  wages  such  sums  as  he 
has  paid  for  the  infant's  necessaries,  but 
no  other.  Hedgley  v.  Holt,  4  C.  &  P. 
104.  In  this  case,  Bayley,  J.,  sa.\d:  — 
"  Payments  made  on  account  of  wages 
due  to  an  infant,  for  necessaries,  and 
which  could  not  be  avoided,  are  valid 
payments  ;  but  an  infant  cannot  bind 
herself  for  things  which  are  not  neces- 
sary; indeed,  even  the  statement  of  an 
account  does  not  bind  an  infimt.  It 
appears  that  this  young  woman  was 
under  age  when  she  settled  the  account. 
The  consequences  might  be  very  inju- 

[546] 


rious  if  the  law  were  otherwise.  What 
would  it  lead  to  in  this  very  case  7 
Here  is  a  female,  v,ho  is  described  as 
rather  a  showy  woman,  suffered  to  dress 
in  a  manner  quite  unfitted  for  her  sta- 
tion ;  and  at  the  end  of  her  twelve 
months'  servitude  she  would  not  have 
a  fimhing  in  her  pocket."  In  Adams 
V.  The  Woonsocket  Company,  11  Met. 
327,  a  father,  whose  minor  daughter 
was  employed  by  a  manufacturing  com- 
pany, at  a  "distance  of  many  miles  from 
his  residence,  forbade  them  to  employ 
her  any  further,  and  gave  them  notice 
that  if  they  should  continue  to  employ 
her,  he  should  demand  S3. 50  per  week 
for  her  time  and  labor,  without  any  de- 
duction on  any  account  whatever,  and 
also  directed  them  not  to  pay  or  allow 
her  any  thing,  either  goods  or  money, 
on  account  of  her  labor.  It  was  held, 
in  an  action  of  assumpsit  by  the  father 
against  the  company,  to  recover  pay 
for  his  daughter's  labor,  subsequently- 
done  for  them,  that  he  was  entitled  to 
recover  only  as  much  as  her  labor  was 
reasonabl}' worth,  deducting  the  price  of 
board  provided  for  her  by  them,  without 
any  deduction  for  clothing  which  they 
provided  for  her. 

iy)  In  Priestley u.  Fowler,  3  M.  &W. 
1,  Lord  Ahinger  says  this  should  be  such 
care  as  the  master  may  reasonably  be 
expected  to  take  of  himself. 

(-)  Ibid, 

(")  Farwell  v.  Boston  &  "Worcester 
E.  R.  Co.  4  Mete.  49  ;  Priestlv  v.  Fow- 
ler, 3  I\I.  &  "W.  1 ;  Brown  v.  'iSIaxwell, 
6  Hill,  594 ;  Hutchinson  v.  York,  New- 
castle, &  Berwick  Ky.  Co.  5  Exch.  343  ; 
Wigmore  v.  Jay,  5  Exch.  354;  Hubgli 
V.  New  Orleans  Railroad,  6  Louis  Ann. 
495 ;  Coon  v.  Syracuse  &  Utica  Rail- 
road, 1  Seld.493:  Sherm.an  r.  Rochester 
&  Syracuse  Railroad,  15  Barb.  574  ; 
Albro  V.  Agawam  Canal  Co.  6  Cush. 


CH.   IX.]  HIRING   OP  PERSONS.  *  529 

if  the  master  has  a  general  manager  who  employs  the  ser- 
vants, standing  in  the  place  of  the  master,  he  is  to  be  treated 
as  the  agent  of  the  master  and  not  as  a  co-servant,  and  if  he 
does  not  hire  careful  servants  the  master  is  liable  as  if  he 
hired  improper  servants  himself,  [za) 

The  master  is  under  no  legal  obligation  to  give  a  testimo- 
nial of  character  to  his  servant.  If  he  does,  it  will  be  pre- 
sumed that  he  speaks  the  truth,  or  what  he  believes  to  be 
true  ;  and  therefore  if  he  says  what  injures  the  standing  and 
prospects  of  the  servant,  and  this  turn  out  not  to  be  true,  the 
master  is  nevertheless  not  liable,  unless  the  servant  can  prove 
that  the  falsity  was  uttered  in  malice,  (a)  Such  is  the  Eng- 
lish rule ;  but  it  may  be  supposed  that  in  this  country,  if  the 
master  is  proved  to  have  said  what  is  untrue,  he  would  be 
responsible  for  any  injury  arising  therefrom  to  the  servant ; 
at  least  unless  he  could  satisfy  the  jury  that  he  did  not 
speak  from  malice. 

In  order  to  constitute  a  contract  of  hiring  and  service  there 
must  be  a  mutual  engagement,  on  the  one  part  to  serve,  and 
*on  the  other  to  employ  and  pay.  [b)  But  these  engage- 
ments cannot  always  be  implied  one  from  the  other,  or 
measured  one  by  the  other.  If  a  servant  agrees  to  serve  for 
a  term  of  two  years,  and  the  master  only  agrees  to  pay  so 
much  weekly,  the  master  is  under  no  obligation  to  keep  or 
employ  him  during  the  two  years,  but  only  to  pay  so  much 
while  he  does  employ  him.  (c)     But  where  the  contracts  are 


75  ;  Mitchell  v.  Penn.  R.  R.  Co.,  Amcr.  was  invalid  under  the  statute  of  frauds, 

Law  Register,  Oct.  1853,  p.  717  ;  Contra,  for  want  of  mutuality, 
Little  Miami  Railroad  Co.  v.  Stevens,         {c)  Thus  in  Williamson  v.  Taylor,  5 

20  Ohio,  415;  and  the  Scotch  case  of  Q.  B.  175,  by   an   ap-ecmcnt   between 

Dixon  V.  Ranken,  20  Law  Times  Rep.  defendant  and  plaintiff,  defendant,  being 

44.  the  owner  of  a   colliery,   retained   and 

{~a)  Walker  v.  Boiling,  22  Ala.  294.  hired  plaintiff  to  hew,  work,  &c.,  at  the 

(a)  Rogers  r.  Clifton,  3  B.  &  P.  591  ;  colliery,  for  wages  at  certain  rates  in 

Edmondson  v.  Stephenson,  Bull.  N.  P.  proportion  to  tlie  work  done,  payable 

8;  Weatherston  v.  Hawkins,  1    T.  R.  once  a  fortnight;  and  plaintiff  agreed 

110.  to  continue  defendant's  servant  during 

(6)  Sec  Sykcs  v.  Dixon,  9  Ad.  &  El.  all  times  the  pit  should  be  laid  oif  work, 

693,  where  JB.  contracted  in  writing  to  and,  when  required,  (except  when  prc- 

work  for  plaintiff  in  his  trade,  and  for  vented  by  unavoidable  cause.)  to  do  a 

no  other  person,  during  twelve  montlis,  full  day's  work  on  every  working  day. 

and  so  on  from  twelve  months  to  twelve  JlelJ,  that  the  defendant  was  not  obliged 

months,  until  B.  should  give  notice  of  by  this  contract  to  employ  plaintilfat 

(putting.    Held,   that  such   agreement  reasonable  times  for  a  reasonable  num- 

[547] 


-529 


THE  LAW   OF   CONTRACTS. 


[book   III. 


mutual,  and  cover  the  same  ground  for  both  parties,  then  the 
master  has  at  once  a  right  to  require  the  servant  to  enter 
upon  the  discharge  of  his  duty  during  the  term,  and  the  ser- 
vant has  a  right  to  require  the  master  to  employ  him  during 
the  whole  of  the  term. 

Like  other  agreements,  a  contract  for  labor  and  service,  if 
not  to  be  performed  within  a  year  is  within  the  Statute  of 
Frauds,  and  if  by  parol,  is  wholly  void,  (cc)  And  if  the  con- 
tract of  service  is  begun  within  a  year  from  the  making  of  it, 
but  is  not  by  the  terms  of  the  agreement  to  be  completed 
within  that  time,  it  is  within  the  statute  and  void,  (cd)  It 
must  be  certain  hov^rever  from  the  terms  of  the  contract,  or 
be  necessarily  implied  therefrom,  that  the  contract  cannot  be 
performed  within  a  year,  or  it  will  not  be  void,  (ce)     This 


ber  of  working  days  during  the  term. 
So  in  Aspdin  v.  Austin,  5  Q.  B.  671, 
by  an  agreement  between  plaintiff  and 
defendant,  plaintiff  agreed  to  manufac- 
ture for  defendant  cement  of  a  certain 
quality,  and  defendant,  on  condition  of 
plaintiff's  performing  such  engagement, 
promised  to  pay  him  X4  weekly  during 
the  two  years  following  the  date  of  the 
agreement,  and  £5  weekly  during  the 
year  next  following,  and  also  to  receive 
him  into  partnership  as  a  manufacturer 
of  cement  at  the  expiration  of  three 
years  ;  and  plaintiff  engaged  to  instruct 
"defendant  in  the  art  of  manufacturing 
cement.  Each  party  bound  himself  in 
a  penal  sum  to  fulfil  the  agreement. 
Defendant  afterwards  covenanted  by 
deed  for  the  performance  of  the  agree- 
ment on  his  part.  Held,  that  the  stipu- 
lations in  the  agreement  did  not  raise 
an  implied  covenant  that  defendant 
should  employ  plaintiff  in  the  business 
during  three  or  two  years,  though  de- 
fendant was  bound  by  the  express 
words  to  pay  plaintiff  the  stipulated 
wages  during  those  periods  respectively, 
if  plaintiff  performed,  or  was  ready  to 
perform,  the  condition  precedent  on  his 
part.  See  also  Dunn  r.  Sayles,  .5  Q. 
B.  685;  rilkington  v.  Scott,  15  ]\I.  & 
W.  657  ;  Elderton  v.  Emmens,  6  Com. 
Bench,  160;  Rust  i'.  Nottidge.  16  E.  L. 
&  E.  170;  Regina  v.  Welch,  20  E.  L. 
&  E.  82. 

(cc)  Bracegirdle  v.  Ileald,  1  B.&  Aid. 
722.    In  this  case  the  contract  was  bj' 

[548] 


parol  on  the  27th  May,  for  a  year's  ser- 
vice from  the  30th  of  June  following, 
and  was  held  void.  See  also  Snclling 
V.  Lord  Huntingtield,  1  Cr.  M.  &  R.  20; 
Hinckley  v.  Southgate,  11  Verm.  428; 
Tuttle  V.  Swett,  31  JMaine,  555. 

[cd)  Idem  ;  and  see  Pitcher  r.  Wil- 
son, 5  Missouri,  46  ;  Drummond  r.  Bur- 
rell,  13  Wend.  307  ;  Squire  v.  Whipple, 
1  Verm.  69  ;  Birch  v.  Earl  of  Liverpool, 
9  B.  &  Cr.  392. 

(ce)  A  parol  agreement  to  labor  for  a 
company  "for  the  term  of  five  years,  or 
so  long  as  A.  shall  continue  to  be  arjent  of 
the  compani/,"  is  not  void  under  the  sta- 
tute, as  it  might  have  been  completed 
within  a  year,  although  in  some  contin- 
gencies it  might  extend  beyond  a  year. 
Roberts  v.  Rockbottom  Company,  7 
Met.  47.  —  This  construction  of  the  sta- 
tute is  supported  also  by  the  cases  of 
Kent  I'.  Kent,  18  Pick.  569:  Peters  i-. 
Westborough,  19  Pick.  364;  Wells  v. 
Horton,  4  I3ing.  40.  —  In  Broadwell  v. 
Getman,  2  Denio,  87,  it  was  held  that 
a  parol  agreement  which  is  not  wholly 
to  be  performed  within  one  year,  is  void, 
though  some  of  the  stipulations  are  to 
be  executed  within  the  year.  And,  sem- 
hlc  per  Bcardsley,  J.,  it  is  void  although 
one  of  the  parties  is  to  perform  every 
thing  on  his  part  within  the  year,  if  a 
longer  time  than  a  year  is  stipulated 
for  the  performance  by  the  other.  But 
in  Cherry  i-.  Heming,  4  Exch.  631,  it 
was  held"  (affirming  Donellan  v.  Read, 
3  B.  &  Ad.  899,)  that  in  the  4th  section 


CH.   IX.] 


HIRING   OF  PERSONS. 


'530 


subject  will  be  however  considered  more  fully  in  the  second 
part  of  this  work  in  the  chapter  upon  the  Statute  of  Frauds. 
A  nice  distinction  is  taken  in  some  cases  between  the  pre- 
sumptions which  arise  where  service  is  rendered  to  a  stran- 
ger, and  where  it  is  rendered  to  near  relations.  In  general, 
wherever  service  is  rendered  and  received,  a  contract  of 
hiring,  or  an  obligation  to  pay  will  be  presumed,  {d)     But  *it 


of  the  Statnte  of  Frauds  the  words,  "not 
to  be  performed  witliin  the  space  of  one 
year,"  mean,  "not  to  be  performed  on 
either  side"  and  that  the  contract  in 
question  Iiaving  been  performed  on  one 
side  within  a  year  from  the  making 
thereof,  the  case  was  not  within  the 
Statute. —  So  in  Herrin  r.  Butters,  20 
Maine,  119,  the  law  on  this  subject  is 
thus  laid  down ;  where  by  the  terms  of 
a  contract  the  time  of  its  performance 
was  to  be  extended  beyond  a  year,  it  is 
within  the  statute  of  frauds,  though  a 
part  of  it  was  by  the  agreement  to  be 
performed  within  a  year.  To  bring  a 
case  within  the  statute  of  frauds,  it  must 
have  been  expressly  stipulated  by  the 
parties,  or  it  must,  upon  a  reasonable 
construction  of  their  contract,  appear  to 
have  been  understood  b}-  them,  that  the 
contract  was  not  to  be  pex-formed  within 
a  year.  A.  G.  B.  contracted  in  writing 
with  S.  to  clear  eleven  acres  of  land  in 
three  years  from  the  date  of  the  con- 
tract, one  acre  to  be  seeded  down  the 
'(then)  present  spring,  one  acre  the  next 
spring,  and  one  acre  the  spring  follow- 
ing; as  a  compensation  for  which,  he, 
A.  G.  B.,  was  to  have  all  the  proceeds 
of  said  land  three  years,  except  the  two 
acres  first  seeded  down.  A.  G.  B.  as- 
signed verbally  his  interest  to  the  ex- 
tent of  half  the  contract,  to  H.,  who  ver- 
bally assigned  said  half  to  C.  B. ;  said 
H.  and  C.  B.  respectively  agreeing  ver- 
bally to  perform  one  half  of  the  con- 
tract. A.  G.  B.  and  C.  B.  commence 
the  performance  of  the  contract,  but  do 
not  complete  it.  S.  sues  A.  G.  B.,  and 
recovers  damages  for  non-performance, 
which  are  paid  by  A.  G.  B.  H.  being 
called  upon  by  A.  G.  B.  for  half  of  the 
damages  so  recovered  and  paid,  pays 
the  same  to  him  ;  and  tiien  commences 
a  suit  for  the  same  against  C.  B. —  it 
was  held,  that  the  contract  between  them 
(II.  and  C.  B.)  was  void  by  the  statute 
of  frauds,  and  that  he  was  not  entitled 


to  recover.  —  See  also  Roberts  ;;.  Tuck- 
er. 3  Exch.  R.  032. 

(d)  Phillips  V.  Jones,  1  Ad.  &  El. 
333,  Lord  Denman.  See  Peacock  v. 
Peacock,  2  Camp.  45 ;  "Waterman  i'. 
Gilson,  5  Louis.  Ann.  672.  In  Newel 
V.  Keith,  11  Verm.  214,  it  is  said  that  if 
])ersonal  services  are  rendered  by  A.  to 
B.  at  the  request  of  the  latter,  an  action 
will  lie  for  them,  unless  it  appears  from 
the  whole  evidence  that  they  were  de- 
signed to  be  gratuitous;  and  this  is  a 
question  of  fact. — So  where  one  person 
has  by  fraud  induced  another  to  labor 
for  a  third  person,  the  latter  may  still 
be  liable  for  the  work.  Lucas  v.  God- 
win, 3  Bing.  N.  C.  737.  In  Peter  v. 
Steel,  3  Yeates,  250,  it  was  held  that 
assumpsit  would  lie  in  favor  of  a  free 
negro,  for  work,  labor,  and  service, 
against  a  person  who  held  him  in  his 
service,  claiming  him  as  a  slave.  Tho 
court  laid  down  the  general  principle 
that,  where  one  by  compulsion  does 
work  for  another,  whom  he  is  under  no 
legal  or  moral  obligation  to  serve,  the 
law  will  imply  and  raise  a  promise  on 
the  part  of  the  person  benefited  thereby 
to  make  him  a  reasonable  recompense. 
So  in  Higgins  v.  Brecn,  9  Missouri, 
497,  it  was  held  that  where  a  married 
man  represents  himself  to  be  a  widower, 
and  thus  induces  a  woman  to  marry 
him,  his  wife  being  still  alive,  such  wo- 
man may  recover  of  him  for  her  ser- 
vices during  such  time  as  she  may  live 
with  him.  —  And  generally  where  labor 
is  performed  for  the  benefit  of  another 
without  his  express  request,  yet  if  he 
knows  of  the  work,  and  tacitly  assents 
to  it,  an  implied  promise  M'ill  arise  to 
pav  a  reasonable  compensation.  James 
r.  "Bixby,  11  ]\Iass.  34;  Farmington 
Academy  r.  Allen,  14  Mass.  172.  So 
where  one  employs  the  slave  of  another, 
the  law  implies  a  promise  to  pay  the 
master  for  the  services  of  the  slave. 
Cook  r.  Ilustcd,  12  Johns.  188.     So  of 

[549] 


m 


THE   LAW   OF   CONTRACTS. 


[book  III. 


is  said  not  to  be  so  where  the  service  is  rendered  to 
the  parent  or  uncle,  or  other  near  relative  of  the  party, 
on  the  ground  that  the  law  regards  such  services  as  acts 
of  gratuitous  kindness  and  affection.  We  find  American 
•authorities  which  recognize  this  distinction,  and  particu- 
larly where  it  grows  out  of  the  relation  of  parent  and 
child,  (e)     But  if  a  destitute  person  is  received  from  charity, 


an  apprentice.  Bowes  v.  Tibbets,  7 
Greenl.  457.  But  l.ibor  and  service  vo- 
luntarily done  by  one  for  another,  with- 
out his  i)rivity  or  consent,  however  merit- 
orious or  beneficial  it  may  be  to  him,  as 
in  saving  liis  property  from  destruction 
by  fire,  affords  no  ground  for  an  action. 
Bartholomew  v.  Jackson,  20  Johns.  28. 
So  if  a  workman  be  employed  to  do  a 
particular  job,  and  he  choose  to  perform 
some  additional  work  without  consult- 
ing liis  employer,  he  cannot  recover  for 
such  additional  work.  Hort  v.  Norton, 
1  McCord,  22.  See  also  ante,  p.  391, 
et  seq.  Even  if  it  is  agreed  between  the 
parties  tliat  certain  work  shall  be  done 
gratuitously,  such  contract  is  nudum  pac- 
tum, and  the  party  is  not  bound  to  per- 
form it ;  although  it  is  said  that  if  he 
once  enter  upon  the  performance  of 
such  contract,  he  is  bound  to  complete 
it.  See  Rutgers  u.  Lucet,  2  Johns.  Cas. 
92,  (2d  ed.)  and  note. 

(e)  In  Andrus  v.  Foster,  17  Verm. 
556,  it  was  held  that  where  a  daughter 
continues  to  reside  in  the  family  of  her 
father  after  the  age  of  majority,  the 
same  as  before,  the  law  implies  no  obli- 
gation on  the  part  of  her  father  to  pay 
for  her  services.  And  tire  same  rule 
applies  to  cases  where  the  person  from 
whom  the  compensation  for  services  is 
claimed  took  tiie  plaintiff-  into  his  fa- 
mily, when  she  was  a  child,  to  live  with 
him  till  she  should  become  of  age,  and 
she  continues,  after  that  time,  to  reside 
in  his  family,  he  standing  in  loco  paren- 
tis to  her.  If  she  claim  pay,  it  is  in- 
cumbent on  her  to  show  that  the  ser- 
vices were  performed  under  such  cir- 
cumstances as  to  justify  an  expectation 
on  the  part  of  both  that  pecuniary  com- 
pensation would  be  required.  The 
right  to  compensation  for  services  in 
such  cases  must  depend  upon  the  cir- 
cumstances of  each  particular  case.  See 
also  Fitch  u.  Peckham,  IG  Verm.  150; 
Weir  V.  Weir,  3  B.  Monroe,  G47  ;  Al- 

1550] 


fred  V.  Fitzjaraes,  3  Esp.  3.  In  Guild 
V.  Guild,  15  Pick.  130,  the  law  on  this 
point  is  thus  summed  up  by  Shaiv,  C. 
J.:  —  "The  point  is,  whether,  where 
a  daughter,  after  arriving  at  twenty-one 
years  of  age,  being  unmarried,  contin- 
ues to  reside  in  her  father's  family, 
performing  such  useful  services  as  it  is 
customary  for  a  daughter  to  perform, 
and  receiving  such  protection,  subsist- 
ence, and  supplies  of  necessaries  and 
comforts,  as  it  is  usual  for  a  daughter 
to  receive  in  a  father's  family,  the  law 
raises  any.  presumption  that  she  is  en- 
titled to  a  pecuniary  compensation 
for  such  services,  and  whether,  after 
proving  these  facts,  the  burden  of  proof 
is  on  the  defendant,  to  show  that  the 
services  were  performed  without  any 
view  to  pecuniary  compensation.  Some 
of  the  court  are  of  opinion  that  as  it 
is  the  ordinary  presumption,  between 
strangers,  that  upon  the  performance  of 
useful  ahd  valuable  services  in  the  fa- 
mily of  another,  it  is  upon  an  implied 
promise  to  pay  as  much  as  such  services 
are  reasonably  worth,  so,  after  the  legal 
period  of  emancipation,  the  law  raises 
a  similar  implied  promise  from  a  father 
to  a  daughter.  Other  members  of  the 
court  are  of  opinion,  (confining  the 
opinion  to  the  case  of  daughters,  and 
expressing  no  opinion  as  to  the  case  of 
sons,  laboring  on  the  farm  or  otherwise 
in  the  service  of  a  father,)  that  the  pro- 
longed residence  of  a  daughter  in  her  fa- 
ther's family  after  twenty-one,  perform- 
ing her  share  in  theordinary  labors  of  the 
family,  and  receiving  the  protection  and 
supplies  contemplated  in  the  supposed 
case,  may  well  be  accounted  for,  upon 
considerations  of  mutual  kindness  and 
good  will,  and  mutual  comfort  and  con- 
venience, without  presuming  that  there 
was  any  understanding,  or  any  expecta- 
tion that  pecuniarv  compensation  was 
to  be  made ;  that  proof  of  these  facts 
alone,  therefore,  does  not  raise  an  im- 


CH.  IX.] 


HIEING   OP  PERSONS. 


'532 


provided  with  necessaries  and  set  to  work,  he  is  under  no  ob- 
ligation to  remain,  nor  has  he  any  claim  for  wages,  unless 
there  be  some  express  agreement,  or  one  may  be  implied 
from  the  peculiar  circumstances  of  the  case. 

A  person  who  seduces  a  servant  away  from  the  service  of 
his  master  or  employer  is  liable  in  an  action  for  damages. 
Although  this  principle  has  been  less  positively  settled  by 
•adjudication  in  this  country  than  in  England,  we  have  no 
doubt  of  it,  as  a  rule  of  law.  (/) 


plied  promise  to  make  any  pecuniary 
compensation  for  such  services,  or 
throw  on  the  defendant  the  burden  of 
proof  to  show,  affirmatively,  that  the 
daugliter  performed  the  services  gratui- 
tously, and  without  any  expectation  of 
receiving  wages  or  pecuniary  compen- 
sation, but  wiih  a  view  to  the  share  slie 
might  hope  to  receive  in  her  father's 
estate  or  otherwise."  The  court  were 
equally  divided  on  this  question,  and 
did  not  decide  it  ;  but  they  were 
unanimous  in  tlie  opinion  that  in 
all  such  cases  the  question  must  be 
determined  by  the  jury,  on  all  the 
circumstances,  whether  there  was  an 
implied  request  for  labor,  and  an  im- 
plied promise  of  repayment  or  not.  In 
King  ;;.  Sow,  1  B.  &  Aid.  179,  a  fe- 
male natural  child  was  hired  for  a  year 
by  the  wife  of  its  reputed  fatlier,  and 
continued  doing  the  household  work 
for  three  years,  but  after  the  first  year 
no  wages  were  paid,  nor  was  there  any 
new  contract  of  hiring.  Held,  that  the 
sessions  were  warranted  in  finding  that 
after  that  time  she  did  not  continue  on 
the  terms  of  the  original  contract.  And 
Bayley,  J.,  said:  —  "Where  the  parties 
are  not  related,  it  may  fairly  be  pre- 
sumed from  a  continuance  in  the  ser- 
vice that  the  terms  on  which  they  con- 
tinue are  the  same  as  during  the  pre- 
ceding year.  But  where  the  relation  of 
father  and  child  subsists,  the  ground 
for  that  presumption  fails."  See  to  the 
same  effect  Dve  v.  Kerr,  15  Barb.  444  ; 
Kidgway  i-.  English,  2  N.  Jersey,  409  ; 
Swires  v.  Parsons,  5  W.  &  Serg.  .357  ; 
Defrance  v.  Austin,  9  Tenn.  309  ;  Steel 
w.  Steel,  12  Penn.  G4 ;  Lantz  v.  Frcy, 
14  Penn.  201  ;  Zerbe  v.  Miller,  IG  Penn. 
488;  Kesor  i;.  Johnson,  1  Cart.  (Ind.) 
100 ;  Hussey  v.  Koundtrce,   1  Busbee's 


LawR.  110;  Partlow  v.  Cooke,  2  R.  I 
451.  —  So  an  action  cannot  be  main- 
tained for  services  performed  with  a 
view  to  a  legacy,  and  not  in  expectation 
of  a  reward  in  the  nature  of  a  debt.  See 
Osborn  v.  Governors  of  Guy's  Hospi- 
tal, Strange,  728 ;  Le  Sage  v.  Couss- 
maker,  1  Esp.  188;  Little  v.  Dawson, 
4  Dall.  Ill ;  Lee  y.  Lee,  6  Gill  &  Johns. 
309.  Nor  will  an  action  for  work  and 
labor  lie  for  services  performed  under  a 
contract  of  apprenticeship  which  before 
the  expiration  of  the  service  turns  out 
to  be  void.  Maltby  v.  Harwood,  12 
Barb.  473.  But  where  one  party  has 
rendered  services  for  another,  and  it  is 
manifest  from  the  circumstances  of  the 
case  that  it  was  understood  by  both 
parties  that  compensation  should  be 
made  by  will,  and  none  is  made,  an  ac- 
tion will  lie  to  recover  the  value  of  such 
services.  Martin  v.  Wrigiit,  13  Wend. 
4G0.  In  Eaton  v.  Benton,  2  Hill,  576, 
it  is  said  that  one  Avho  has  served 
another,  in  expectation  of  a  testamentary 
provision,  and  to  whom  the  latter  sub- 
sequently devises  a  portion  of  his  estate, 
cannot  maintain  a  suit  for  such  services 
against  the  executors.  The  general 
rule  seems  to  be,  that  a  legacy  left  by  a 
debtor  to  his  creditor,  which  in  amount 
is  equal  to  or  greater  than  the  debt, 
shall  be  presumed  to  be  in  satisfac- 
tion of  it. 

(/)  Lumley  v.  Gye,  20  E.  L.  &  E. 
168:  Kcane'f.  Boycott,  2  H.  Bl.  511  ; 
Hart  i\  Aldridge,  Cowp.  54.  See  also 
Peters  v.  Lord,  18  Conn.  337;  Ilaight 
V.  Badgelcy,  15  Barb.  499.  This  doc- 
trine was  held  at  nisi  prii(s,  by  Morton. 
J.,  in  an  interesting  case  in  I\Iassachu- 
sctts,  a  few  years  since.  So  one  is 
liable  for  continuing  to  employ  the 
servant  of  another,  after  notice,  although 

[551] 


-532  TUE   LAW   OF   CONTRACTS.  [BOOK  III. 

In  some  casos  very  liberal  presumption  of  payment  is 
made  in  favor  of  the  master ;  as  where  the  servant  has  left 
his  master  for  a  considerable  period ;  and  where  it  is  usual 
to  pay  wages  weekly,  (g-) 


SECTION  II. 
APPRENTICES. 

The  English  law  of  apprenticeship  grew  out  of,  and  with 
nearly  all  its  incidents  rested  upon,  the  ancient  establishment 
of  guilds,  or  companies  for  trade  or  for  handicraft,  which 
were  once  almost  universal  throughout  Europe,  and  still 
generally  subsist,  although  much  modified  in  form  and  effect. 
No  one  could  pursue  a  trade  or  mechaniral  occupation,  on 
his  own  account,  who  was  not  a  member  of  such  guild  or 
company.  Nor  could  he  become  a  member  except  by  a 
regular  apprenticeship.  Hence,  a  change  of  trade  became 
very  difficult ;  and  the  several  companies  provided  with 
great  care  against  such  increase  of  their  numbers  as  should 
render  it  too  difficult  for  all  to  find  occupation.  Under  such 
circumstances,  to  enter  upon  an  apprenticeship  which  led  to 
such  membership  was  to  acquire  a  support  for  life,  and  it 
was  usual  to  pay  large  fees  to  the  master.  This  custom  ex- 
ists in  England-now  very  generally.    In  this  country  we  sup- 

the  defendant  did   not  himself  procure  one  enticing  him  away   liable  therefor, 

the  servant  to  leave  his  former  master,  Sykes  v.  Dixon,  9  Ad."  &  El.  693.     The 

or  know  when    he  employed  him,  that  damages  in  this  action  are  not  such  as 

he  was  the  servant  of  another.     Blake  the   master   sustained  at   the   time,  but 

V.  Lanyon,  6  T.  R.  221.     Although  a  such   as   he    would    naturally    sustain 

servant  is   hired   by  the  piece,  and  not  from   the   leaving  of  his   employment, 

for  any  certain  time,  yet  an  action  lies  Gunter  i-.  Astor,  4  Moore,  12;  Di.xon 

for  enticing  him  away.     Anon.     Lofft,  v.  Bell,  1  Stark.  287.     See  Hays  v.  Bor- 

493.     But  an  action  will  not  lie  for  in-  ders,  1  Oilman,  46;  McKay  v.  Bryson, 

ducing  a  servant  to  leave  his  master's  .5  Ired.  216. 

employ  at   the   expiration  of  the   time         {g]  See  Sellen  v.  Norman,  4  C.  &  P. 

for  Avhich  he   originally   hired   himself,  81;     Lucas    i:    Novosilieski,    1    Esp. 

although   the   servant'  had   not   at  the  296  :  Evans  v.  Birch,  3  Camp.  10.    But 

time  any  intention  of  then  quitting  his  it  is   no  evidence   of  payment   for  one 

master.     Nicholc  .  Marlyn.  2  Esp.^734.  servant's  labor  that  other  laborers  em- 

Thc    contract   of   hiring    between   the  ployed  by  the  party,  on  the  same  work, 

servant   and   his   former   master    must  at    the    same  'time,    were    duly  paid, 

have  been   binding,   in  order  to  render  Filer  v.  Peebles,  8  New  Hamp.  226. 

[552] 


CH.   IX.]  HIRING   OF   PERSONS.  533 

pose  it  to  occur  much  less  frequently ;  and  the  entire  free- 
dom of  employment,  and  the  absolute  right  which  every 
person  has  to  engage  in  what  business  he  pleases,  and  to 
change  his  business  as  often  as  he  pleases,  has  undoubtedly 
operated  to  make  apprenticeships  less  common  with  us  than 
in  Europe.  In  some  parts  of  our  country  they  are  compara- 
tively infrequent ;  and  perhaps  in  none  are  they  so  necessary 
or  so  universal  an  introduction  to  business  as  they  still  are 
in  England. 

The  contract  of  apprenticeship  is  generally  in  writing,  and 
most  frequently  by  deed,  and  is  to  be  construed  and  enforced 
as  to  all  the  parties,  by  the  common  principles  of  the  law  of 
contracts.  Usually,  the  apprentice,  who  is  himself  a  minor, 
and  his  father  or  guardian  with  him,  covenant  that  he  shall 
serve  his  master  faithfully  during  the  term.  And  the  master 
covenants  that  he  will  teach  the  apprentice  his  trade,  and 
supply  him  with  all  necessaries,  and  at  the  end  of  the  term 
give  him  money  or  clothes.  And  in  case  of  sickness  he  is 
bound  to  provide  proper  medicines  and  attendance,  (h)  At 
common  law  the  infant  is  not  himself  responsible,  being  a 
minor ;  (i)  and  therefore  an  adult  also  covenants  with  him  ; 
and  at  the  age  of  majority  the  infant  may  repudiate  the  con- 
tract if  it  extends  beyond  that  period. 

The  sickness  of  the  apprentice,  or  his  inability  to  learn  or 
to  serve,  without  his  fault,  does  not  discharge  the  master 

(h)  Regina  v.  Smith,  8  C.  &  P.  153.  indenture;  for  if  the  son  does  not  choose 
{i)  Cuming  v.  Hill,  3  B.  &  Aid.  59.  to  do  that  which  the  father  covenanted 
At  common  law,  an  indenture  of  ap-  he  should  do,  the  covenant  is  broken, 
prenticeship  was  not  binding  upon  an  and  the  father  is  liable.  Cuming  v. 
infant.  See  Gylbert  v.  Fletcher,  Cro.  Hill,  3  B.  &  Aid.  57.  In  Hiatt  v.  Gil- 
Car.  179;  Jennings  r.  Pitman,  Hutton,  mcr,  6  Ircd.  450,  where  a  boy  was 
63  ;  Lylly's  case,  7  Mod.  15  ;  McDowle's  bound  by  his  father  as  an  apprentice  to 
case,  8  Johns.  331  ;  Whitley  v.  Loftus,  8  a  copartnership,  to  be  taught  a  mecha- 
Mod.  191.  In  Woodrufi"  v.  Logan,  1  nical  trade,  and  the  father  took  away 
Eng.  [Ark  J  27G,  it  was  said  that  a  con-  the  boy  before  his  time  was  expired, 
tract  of  apprenticeship  was  binding  upon  and  soon  afterwards  the  partnersliip 
an  infant,  as  being  for  his  benefit ;  but  was  dissolved,  the  period  of  apprcntice- 
this  is  not  consistent  with  the  current  of  ship  being  still  unexpired,  it  was  held 
authority,  or  the  analogy  of  the  law. —  by  a  majority  of  the  court,  Riiffin,  C.  J., 
But  the  father  might  be  bound  on  the  dissenting,  that  the  persons  composing 
covenants ;  and  it  would  be  no  defence  the  partnership  coulil  only  recover  da- 
to  an  action  by  the  master  against  the  mages  for  the  loss  of  the  l)oy's  services 
father,  for  the  "desertion  of  the  infant,  during  the  time  the  cojiartncrship  con- 
that  the  infant  was  not  bound  by  the  tinucd,  and  not  afterwards. 

VOL.  I.  47  [553] 


534 


THE   LAW   OF   CONTRACTS. 


[book  III. 


from  his  covenants,  {j)  because  these  covenants  are  inde- 
pendent, and  he  takes  this  liability  on  himself.  Nor  will 
such  misconduct  as  would  authorize  a  master  to  discharge  a 
common  servant  discharge  the  master  of  an  apprentice  from 
his  liability  on  his  contract,  {k)  But  if  the  apprentice  deserts 
from  his  service,  and  contracts  a  new  relation  which  disables 
him  from  returning  lawfully  to  his  master,  the  latter  is  not 
bound  to  receive  him  again  if  he  offers  to  return.  (/) 

The  parties  who  covenant  for  the  good  behavior  and  con- 
tinued service  of  the  apprentice  are  not  liable  for  trifling  mis- 
conduct ;  but  it  seems  by  the  English  cases  that,  for  what- 
ever produces  substantial  injury  to  the  master,  as  long  con- 
tinued absence,  repudiation  at  majority,  or  the  like,  they  are 
liable,  [m)     But  it  seems  not  to  be  so  in  this  country,  under 


(j)  Rex  V.  De  Hales  Owen,  1  Str. 
99. 

[k)  Winstone  v.  Linn,  1  B.  &  C.  460. 
So  in  Wise  v.  Wilson,  1  C.  &  K.  662, 
it  was  held  that  a  person  has  a  right  to 
dismiss  a  servant  for  misconduct,  but 
has  no  right  to  turn  away  an  appren- 
tice because  he  misbehaves  ;  but  the 
case  of  a  young  man,  seventeen  years 
old,  who,  under  a  written  agreement 
not  under  seal,  is  placed  with  a  surgeon 
as  "  pitpil  and  assistant"  and  Avith  whom 
a  premium  is  paid,  is  a  case  between 
that  of  apprenticeship  and  service;  and 
if  such  a  person  on  some  occasions 
come  home  intoxicated,  this  alone  will 
not  justify  the  surgeon  in  dismissing 
him.  But  if  the  "  pupil  and  assistant," 
by  employing  the  shopboy  to  compound 
the  medicines,  occasion  real  danger  to 
the  surgeon's  practice,  this  would  jus- 
tify the  surgeon  in  dismissing  him. 
And  Lord  Dcnman,  C.  J.,  in  summing 
up,  said  :  —  "  There  is  a  great  distinc- 
tion between  a  contract  of  apprentice- 
ship, and  a  contract  with  a  servant.  A 
person  has  a  right  to  dismiss  a  servant 
for  misconduct,  but  has  no  right  to  turn 
away  an  apprentice  because  he  misbe- 
haves." 

(/)  Hughes  V.  Humphreys,  6  B.  &.  C. 
680,  which  was  covenant  by  the  fatlicr 
of  an  apprentice  against  the  master,  for 
not  teaching  and  providing  for  the  ap- 
prentice. Plea,  that  up  to  a  certain 
time  defendant  did  teacli,  &c..  and  that 
then  the  apprentice,  without  leave,  quit- 
[554] 


ted  the  defendant's  service,  and  never 
returned.  Replication,  that  on,  &c.,  de- 
fendant refused  then,  or  ever,  to  receive 
back  tlie  apprentice,  and  thereby  dis- 
charged him  from  his  service.  Rejoin- 
der, that  the  apprentice  enlisted  as  a 
soldier,  and  that  plaintiff  never  request- 
ed defendant  to  receive  back  tlie  ap- 
prentice, when  he  was  able  to  return  to 
the  service.  Surrejoinder,  that  soon 
after  the  apprentice  enlisted,  defendant 
refused  then,  or  ever,  to  take  him  back, 
and  wliolly  discharged  him  from  his 
service.  Held,  on  demurrer,  that  the 
surrejoinder  was  bad,  not  being  a  suffi- 
cient answer  to  the  rejoinder,  and  that 
the  plea  was  good,  as  it  disclosed  a  suf- 
ficient excuse  for  non-performance  of 
the  defendant's  covenant. 

(m)  Wright  v.  Gihon,  3  C  &  P.  583, 
where  it  was  held  that  the  staying  out 
by  an  apprentice  on  a  Sunday  evening 
beyond  the  time  allowed  him,  is  not 
such  an  unlawful  absenting  of  himself 
as  will  enable  his  master  to  maintain  an 
action  of  covenant  against  a  person  who 
became  bound  for  tlie  due  performance 
of  the  indenture.  In  Cuming  v.  Hill,  3 
B.  &  Aid.  59,  the  action  was  covenant 
upon  an  indenture  of  apprenticeship,  by 
the  master  against  the  father;  the  breach 
assigned  was  that  the  a])prentice  ab- 
sented himself  from  the  service ;  plea, 
that  the  son  faithfully  served  till  he 
came  of  age,  and  that  lie  then  avoided 
the  indenture.  Held,  that  this  was  no 
answer  to  the  action.    Abbott,   C.   J., 


CH.    IX. 


HIRING   OP  PERSON^. 


535 


our  common  statutory  apprenticeships,  (n)  although  doubt- 
less phraseology  might  be  adopted  which  would  have  that 
effect.  Where  the  indenture  can  be  construed  as  meaning 
only  that  the  parent  or  guardian  sanctions  the  binding  of  the 
apprentice,  and  does  not  bind  himself,  it  will  be  so  construed, 
although  the  covenants  may  seem  to  be  covenants  both  of 
the  apprentice  and  of  the  parent. 

Not  only  a  party  who  seduces  an  apprentice  from  his  ser- 
vice is  liable,  (o)  but  where  one  employs  an  apprentice  with- 
out the  knowledge  and  consent  of  his  master,  the  employer 
is  liable  to  the  master  for  the  services  of  the  apprentice,  al- 
though  he   did  not  know  the  fact  of  the  apprenticeship,  (oo) 


said  :  —  "I  am  of  opinion  that  the 
father  is  liable  to  this  action.  He  cove- 
nants that  the  son  shall  faithfully  serve  ; 
the  avoidance  of  the  apprenticeship  by 
the  son  during  tlie  term  cannot  discharge 
the  father's  covenant.  The  indenture 
of  apprenticeship  has  existed  in  this 
form  for  more  than  a  century,  and  has 
been  in  universal  use.  A  construction 
has  been  put  upon  the  instrument  in  a 
court  of  law,  in  the  case  cited  from 
Douglas  (Branch  v.  Ewington,  Doug. 
518.)  I  do  not  see  any  reason  to  doubt 
the  propriety  of  that  decision,  and  I 
think,  therefore,  upon  principle  as  well 
as  upon  authority,  that  the  defendant  is 
answerable  in  this  action."  Bai/kt/,  J., 
also  said :  —  "I  may  bind  myself  that 
A.  B.  shall  do  an  act,  although  it  is  in 
his  option  whether  he  will  do  it  or  not. 
Tiic  father  here  binds  himself  that  the 
son  shall  serve  seven  years.  It  is  no 
answer  in  an  action  brought  against  the 
father,  for  the  breach  of  that  covenant, 
for  him  to  say  that  it  was  in  the  option 
of  the  son  whether  he  would  serve  or 
not.  If  the  son  does  not  choose  to  do 
that  which  the  father  covenanted  he 
should  do,  the  covenant  is  then  broken, 
and  the  father  is  liable."  —  It  seems  that 
any  cliange  of  trade  on  the  part  of  the 
master  discharges  the  father  from  his 
obligation  that  the  son  shall  continue  to 
serve.  Ellen  v.  Topp,  4  E.  L.  &  E. 
412. 

(n)  Blunt  V.  Melcher,  2  Mass.  228, 
where  it  was  held  that  in  an  indenture 
of  apprenticeship  made  by  the  master, 
the  ai)prenticc,  and  the  guardian  of  the 
apprentice,  the  covenants  that  "  tiie  ap- 
prentice shall  faithfully  serve  his  mas- 
ter," &c.,  arc  not  the  covenants  of  the 


guardian.  And  Parker,  J.,  in  giving 
his  opinion,  observed :  — •'  The  question 
for  our  determination  is,  whether  the  de- 
fendant is  bound  by  the  covenants  in 
this  indenture  for  the  apprentice's  good 
conduct.  Jly  opinion  is  decidedly  that 
he  is  not  bound.  He  is  not  mentioned 
as  a  party  to  those  or  any  other  cove- 
nants contained  in  the  instrument.  The 
intent  of  all  the  parties  in  making  this 
indenture  appears  from  the  instrument 
itself  The  apprentice  binds  himself 
witlt  the  consent  of  his  guardian.  To 
express  that  consent,  and,  in  my  opi- 
nion, with  no  other  intent,  and  for  no 
other  purpose,  the  guardian  signs  and 
seals  the  instrument.  It  is  objected 
to  tliis  that  great  inconveniences  and 
mischiefs  will  arise  from  this  construc- 
tion of  this  sjiecies  of  indenture.  But 
to  guard  against  these,  the  guardian 
may  enter  into  covenants  explicitly 
M'ith  the  master,  and  there  is  no  doubt 
such  covenants  will  be  valid  and  bind- 
ing upon  him."  See  also  Hol!)rook  v. 
Builard,  10  Pick.  68.  The  same  rule 
is  supported  by  Ackley  v.  Iloskins,  14 
Johns.  374.  See  further  Sackett  v. 
Johnson,  3  Blackf.  Gl  ;  Cliapman  v. 
Crane,  20  Maine,  172. 

(o)  Lightly  r.  Clouston,  1  Taunt. 
112;  Eoster"t'.  Stewart,  3  M.  &  S.  191. 
So,  it  seems,  that  the  seductioTi  of  a 
minor,  who  is  a  servant  de  facto,  though 
not  a  legal  apprentice,  from  the  service 
of  the  master,  is  actionable.  Peters  v. 
Lord,  18  Conn.  337. 

{oo)  Bowes  V.  Tibbcts,  7  Grccnl.  457  ; 
Conant  v.  Raymond,  2  Aik.  243 ;  Mun- 
sey  V.  Goodwin,  3  New  Hamp.  272 ; 
James  v.  Le  Roy,  6  Johns.  274.  In 
Ayer  v.  Chase,  19  Pick.  556,  where  the 

[555] 


536 


THE   LAW    OF    CONTRACTS. 


[book    III. 


•  It  may  be  added  that  if  an  action  be  brought  for  harboring 
an  apprentice  against  the  will  or  without  the  consent  of  his 
master,  the  plaintiff  is  bound  to  prove  that  the  defendant  had 
a  knowledge  of  the  apprenticeship,  (p)  But  a  defendant 
who  did  not  know  the  apprenticeship  when  he  hired  or  re- 
ceived the  apprentice,  and  who  being  informed  thereof  con- 
tinued to  retain  and  harbor  him,  thereby  makes  himself 
liable,  (pp) 


plaintiff  put  his  apprentice  into  the 
service  of  another  person  exercising 
the  plaintiff's  trade,  for  a  short  time, 
on  wages  to  be  paid  to  the  plaintiff, 
and  during  that  period  tlie  apprentice 
absconded  and  went  to  sea,  it  was  held 
that  hy  such  transfer  of  the  appren- 
tice the  plaintiff's  right  to  his  services 
was  suspended,  and  that  it  did  not  re- 
[556] 


vive  upon  his  absconding,  so  as  to  en- 
title the  plaintiff  to  his  earnings  on  the 
voyage. 

(p)  Ferguson  v.  Tucker,  2  Ilarr.  & 
Gill,  182.    And  see  Stuart  v.  Simpson, 

1  Wend.  376  ;    Conant   v.   Raymond, 

2  Aikens,  243. 

(pp)  Ferguson  v.  Tucker,  supra. 


CH.  X.] 


CONTRACTS  FOR  SERVICE  GENERALLY. 


537 


CHAPTER  X. 

CONTRACTS  FOB,  SERVICE  GENERALLY. 

There  is  in  all  such  contracts  a  promise,  implied  if  not 
expressed,  that  the  party  employing  will  pay  for  the  service 
rendered;  (q)  and,  on  the  other  hand, that  the  party  employ- 
ed will  use  due  care  and  diligence,  and  have  and  exercise  the 
skill  and  knowledge  requisite  for  the  employment  under- 
taken, (r)  And  if  the  contract  express  that  the  service  shall 
be  gratuitous,  then  it  is  void  for  want  of  consideration  ;  (s) 
but  there  may  be  a  valid  agreement  to  delay  payment,  or  to 
make  the  payment  conditional  on  the  happening  of  some 
event,  —  as  when  the  work  is  finished,  or  when  the  employer 
receives  his  pay.  (t)  If  a  party  agrees  to  do  work,  and  re- 
ceive no  pay,  he  cannot  recover  pay,  (u)  if  he  does  the  work  ; 


{q)  Phillips  V.  Jones,  1  Ad.  &  El. 
333,  ante,  page  .529,  (d.) 

(r)  Morris  v.  Redficld,  23  Verm.  295  ; 
Goslin  V.  Hodson,  2-t  Verm.  140  ; 
Hall  V.  Cannon,  4  Harring.  360  ;  Hager 
V,  Nolan,  6  Louis.  Ann.  70.  And  see 
Streeter  r.  Horlock,  1  Bing.  34. 

(s)  In  such  case  the  person  contract- 
ing to  do  the  ■work  is  not  bound  to 
commence  it.  But  if,  in  the  understand- 
ing of  all  parties,  the  services  were  ori- 
ginally rendered  gratuitously,  tliey  can- 
not afterwards  be  made  a  cliarge. 
James  v.  O'DriscolI,  2  Bay.  101.  So  in 
Davies  v.  Davies,  9  C.  &  B.  87,  A.  and 
his  wife  boarded  and  lodged  in  the 
house  of  B.,  the  brother  of  A.,  and  both 
A.  and  his  wife  assisted  B.  in  carrying 
on  his  business.  A.  brought  an  action 
for  the  services,  to  wiiicli  B.  pleaded  a 
set  otf  for  board  and  lodging.  Held, 
that  neither  the  services  on  the  one 
hand,  nor  the  board  and  lodging  on  the 
other,  could  be  charged  for,  uulcss  the 

47  * 


jury  were  satisfied  that  the  parties  came 
together  on  the  terms  that  they  were  to 
pay  and  to  be  paid  ;  but  that  if  that  were 
not  so,  no  ex  post  facto  charge  could  be 
made  on  either  side. 

[t)  Robinson  v.  The  New  York  Ins. 
Co.  2  Caines,  357,  1  Johns.  616. 

(u)  In  Jacobson  v.  Lc  Grange,  3 
Johns.  190,  where  a  young  man,  at  the 
request  of  his  uncle,  went  to  live  with 
him,  and  the  rmcle  promiscnl  to  do  by 
him  as  his  own  child;  and  he  lived  and 
worked  for  him  above  eleven  years,  and 
the  uncle  said  that  his  nephew  should 
be  one  of  his  heirs,  and  spoke  of  ad- 
vancing a  sum  of  money  to  purchase  a 
farm  for  him.  as  a  compensation  for  his 
services,  but  died  witiiout  devising  any 
thing  to  the  nephew,  or  making  him 
any  compensation  ;  it  was  held  that  an 
action  on  an  implied  assumpsit  ■would 
lie  against  the  e-xecutors.  for  the  work 
and  labor  performed  by  the  ncjilicw  for 
the  testator.    But  in  Patierson  v.  Pat- 

[557] 


538 


THE   LAW   OF   CONTRACTS. 


[book   III. 


but  if  there  be  a  contract  of  service  which  is  silent  or  inde- 
finite in  regard  to  compensation,  the  party  who  renders  the 
service  under  it  may  recover  pay  under  a  quantum  meruit;  {v) 
and  if  by  the  contract  the  party  employed  agrees  to  leave  the 
compensation  entirely  to  the  employer,  the  jury  may  give 
what  the  employer  ought  to  gi\e.{w) 

It  seems  to  be  doubted  in  England  whether  an  arbitrator 
can  recover  for  his  services  without  an  express  promise  ;  (x) 
but  the  doubt  appears  to  grow  out  of  the  peculiar  English 
rule,  that  the  employment  of  a  barrister  at  law  is  wholly 
honorary,  and  gives  him  no  legal  claim  for  compensation. 
We  have  no  such  recognized  rule  here,  although  the  distinc- 
tion between  barristers  and  attorneys  is  preserved  in  some 
States,  and  it  seems  that  some  difference  has  been  made  as 


terson,  13  Johns.  379,  the  facts  were 
that  the  plaintiff,  after  he  had  come  of 
age,  lived  with  and  worked  for  his  fa- 
ther, the  defendant,  who  said  he  would 
reward  him  well,  and  provide  for  him 
in  his  will;  held,  that  the  plaintiff  could 
not  maintain  an  action  to  recover  com- 
pensation for  his  services  during  the 
lifetime  of  his  father.  See  also  ante, 
p.  531,  n.  (e.) 

(v)  See  Jewry  v.  Busk,  5  Taunt. 
302  ;  Bryant  v.  Flight,  5  M.  &  W.  116. 

(jr)  Thus,  in  Bryant  v.  Flight,  5  M. 
&  W.  114,  A.  agreed  to  enter  into  the 
service  of  B.,  and  wrote  to  him  a  letter, 
as  follows: — "I  hereby  agree  to  en- 
ter your  service  as  weekly  manager, 
commencing  next  Monday ;  and  the 
amount  of  payment  I  am  to  receive  I 
leave  entirely  to  you."  A.  served  B. 
in  that  capacity  for  six  weeks.  Held, 
(Parke,  B.,  dissentiente,)  that  the  con- 
tract implied  that  A.  was  to  be  paid 
something  at  all  events  for  the  services 
he  performed  ;  and  that  the  jury,  in  an 
action  on  a  quantum  meruit,  might  as- 
certain what  B.,  acting  bond  fide,  would 
or  ought  to  have  awarded.  So  in  Jew- 
ry V.  Busk,  5  Taunt,  302,  it  is  held  that 
a  request  to  a  tradesman  to  show  the 
defendant's  house,  "  and  the  defendant 
would  make  him  a  handsome  present," 
is  evidence  of  a  contract  to  pay  a  rea- 
sonable compensation  for  the  work  and 
labor  bestowed  in  that  service.  But  in 
the  earlier  case  of  Taylor  v.  Brewer,  1 
M.  «&  S.  290,  where  a  person  performed 
work  for  a  committee,  under  a  resolu- 

[558] 


tion  entered  into  by  them,  "  that  any 
service  to  be  rendered  hj  him  should  be 
taken  into  consideration,  and  such  re- 
muneration be  made  as  should  be  deem- 
ed right,"  it  -was  held  that  an  action 
would  not  lie  to  recover  a  recompense 
for  such  work,  the  resolution  importing 
that  the  committee  were  to  judge  whe- 
ther any  remuneration  was  due. 

(x)  Although  the  English  cases  are 
not  quite  agreed  upon  the  subject,  yet 
it  seems  the  more  generally  received 
opinion  in  that  country,  that  the  ap- 
pointment of  an  arbitrator  is  not  of  such 
a  nature  as  to  raise  an  implied  promise 
to  pay  him  a  reasonable  compensation 
for  his  services.  Virany  i'.  Warne,  4 
Esp.  447 ;  Burroughes  v.  Clarke,  1  Dowl. 
P.  C.  48.  But  see  Swinford  v.  Burn,  1 
Gow,  5.  An  express  promise  to  pay  by 
the  party  will,  however,  bind  him,  and 
give  the  arbitrator  a  right  of  action. 
Hoggins  t\  Gordon,  3  Q.  B.  466.  In  this 
country,  arbitrators  and  referees  under 
a  rule  of  court  have  the  same  right  to 
recover  for  their  services  as  any  person 
for  his  labor.  Hinman  v.  Hapgood,  1 
Denio,  188  ;  Hassinger  v.  Diver,  2 
Miles,  411.  But  the  action  must  not 
be  against  both  parties  to  the  suit  joint- 
ly, but  only  against  the  party  producing 
the  claim  or  demand.  Butman  v.  Ab- 
bot, 2  Greenl.  361.  If  there  were  seve- 
ral arbitrators,  each  may  maintain  a 
separate  action  for  his  own  services. 
Hinman  r.  Hapgood,  1  Denio,  188. 
Butman  i-.  Abbot,  supra. 


CH.  X.] 


CONTRACTS  FOR  SERVICE  GENERALLY. 


539 


to  their  lien  on  the  papers  or  the  judgment  for  fees,  [y)  In 
general,  however,  all  lawyers  have  in  this  country  the  same 
legal  claim  for  compensation  that  attorneys  have  in  Eng- 
land, [z)  So  in  England  a  physician  (or  one  licensed  by  the 
college  of  physicians,)  has  no  remedy  at  law  for  his  ser- 
vices ;  [a)  but  a  "  medical  practitioner,"  whose  legal  appel- 
lation is  usually  "  apothecary,"  has ;  but  we  have  no  such 
distinction  here,  [b) 


(y)  In  most  States  there  is  no  differ- 
ence between  attorneys,  counsellors,  and 
barristers  in  this  respect.  See  Hcartt  v. 
Chipman,  2  Aikens,  162  ;  2  Greenl.  Ev. 
§  144,  n.  4;  Mooney  v.  Lloyd,  5  S.  & 
E.  412  ;  Gray  v.  Brackenridge,  2  Penn. 
75.  Although  an  attorney  has  a  lien 
on  a  judgment  for  his  fees  and  ex- 
penses, yet  this  docs  not  include  fees 
as  a  "  counsellor."  Heartt  v.  Chipman, 
supra, 

(z)  Wilson  V.  Burr,  25  Wend.  386  ; 
Stevens  v.  Adams,  23  Wend.  57  ;  New- 
man V.  Washington,  Mart.  &  Yer.  79. 
But  see  Van  Atta  v.  McKinney,  1  Harr. 
235.  The  law  implies  a  promise  on 
the  part  of  the  client  to  pay  his  attor- 
ney for  his  services  the  statute  rate  of 
compensation.  The  burden  of  proving 
that  the  attorney  undertook  to  perform 
the  services  for  a  less  rate  is  upon  the 
client.  Brady  v.  Mayor,  &c.  1  Sandf. 
569.  But  the  attorney  cannot  recover 
more  than  he  agreed  to  receive,  by 
proof  that  his  services  were  worth  more. 
Coop  wood  V,  Wallace,  12  Ala.  790. 
Nor  can  he  rightfully  claim  one  half  of 
the  amount  recovered,  because  the  debt 
was  desperate.  Christy  v.  Douglas, 
Wright,  485.  Although  the  attorney, 
during  the  pendency  of  a  suit,  makes  a 
contract  with  his  client,  which  is  void 
for  champerty,  he  may  still  recover  for 
such  services  as  were  rendered  before 
such  illegal  agreement  was  entered 
into.  Thurston  v.  Percival,  1  Pick. 
415.  See  Rust  v.  Larue,  4  Litt.  417; 
Caldwell  v.  Shepherd,  6  Monr.  392 ; 
Smith  V.  Thompson,  7  B.  Monr.  305. 
But  in  an  action  by  an  attorney  for  ser- 
vices, his  pocket-docket,  on  which  is  en- 
tered the  names  of  cases  in  which  he 
acted  as  counsel,  is  not  of  itself  evidence 
of  his  right  to  charge  for  his  services. 
Briggs  V.  Gcorgia,^  15  Verm.  61.  An 
attorney  cannot  recover  of  his  client  for 
professional  services  without  proving  a 
retainer,  and  proof  of  the  actual  per- 


formance of  services  is  not  sufficient, 
where  there  is  no  proof  of  a  knowledge 
or  a  recognition  of  the  services  by  the 
client.  Burghart  v.  Gai'dner,  3  Barb. 
64.  An  attorney  has,  in  some  States, 
a  lien  upon  his  client's  papers  left  with 
him,  for  any  general  balance  due  him. 
Dennett  ?;.  Cutts,  11  New  Hamp.  163; 
Walker  v.  Sargeant,  14  Verm.  247  ; 
AUter  in  Pennsylvania.  Walton  v.  Dick- 
erson,  7  Barr,  376.  So  by  statute  in 
many  States  he  has  a  lien  upon  a  judg- 
ment actually  recovered  in  favor  of  his 
client,  for  his  f^es  and  disbursements. 
Dunklee  v.  Locke,  13  Mass.  525  ;  Potter 
V.  Mayo,  3  Greenl.  34  ;  Gammon  v. 
Chandler,  30  Maine,  152  ;  Ocean  Ins.  Co. 
V.  Eider,  22  Pick.  210.  And  even  with- 
out statute  provisions.  Sexton  v.  Pike, 
8  Eng.  (Ark.)  193.  A  counsel,  who, 
with  his  client's  consent,  withdraws 
from  a  case  after  having  tendered  bene- 
ficial services,  docs  not  thereby  lose  his 
right  to  compensation  for  the  services 
rendered,  unless  at  the  time  of  his  with- 
drawal he  waives  or  abandons  his  claim 
to  compensation.  Coopwood  v.  Wal- 
lace, 12  Ala.  790. 

(a)  Chorley  v.  Bolcot,  4  T.  E.  317; 
Lipscombe  v.  Holmes,  2  Camp.  441  ; 
Poucher  v.  Norman,  3  B.  &  C.  745. 
Neither  could  a  physician  who  prepared 
or  dispensed  his  own  medicines  recover 
for  them,  although  they  were  furnished 
to  his  own  patients.  Best,  J.,  in  Alli- 
son V.  Hay  don.  1  M.  &  P.  591,  4  Bing. 
G19. 

{h)  In  some  States  physicians  may 
recover  for  their  services,  although  they 
were  never  licensed  as  physicians.  See 
Towle  V.  Marrett,  3  Greenl.  22  ;  Hewitt 
V.  Wilcox,  1  Met.  154  ;  Bailey  i'.  Mogg, 
4  Den.  60;  Warren  v.  Saxby,  12  Verm, 
146.  In  other  States  there  either  now  ex- 
ist, or  have  existed,  statutes,  providing 
that  they  shall  not  be  entitled  to  the  bene- 
fit of  the  law  to  recover  their  fees,  unless 
they  have  been  duly  licensed  by  some 

[559] 


540 


THE  LAW   OF   CONTRACTS. 


[book  in. 


Where  there  is  a  special  agreement  for  the  performance  of 
work,  no  action  can  be  maintained  on  a  quantum  meruit 
while  the  contract  remains  open  and  executory,  (c) 

It  often  happens,  where  there  is  a  contract  for  a  piece  of 
work  to  be  done  for  a  definite  sum,  as  for  a  house  to  be 
built  or  repaired,  that  extra  work  is  done  by  the  party  em- 
ployed ;  and  there  are  numerous  and  conflicting  cases  as  to 
the  rights  and  obligations  of  the  parties  in  these  cases.  It 
seems  to  Ijave  been  at  one  time  doubted  whether  any  claim 
existed  for  such  extra  work,  unless  a  new  contract  could  be 
shown ;  and  such  is  the  provision  of  the  French  law.  (d) 
But  from  the  authorities  generally,  and  the  reason  of  the 
case,  we  think  the   following   principles    may  be   deduced. 


medical  society,  or  graduated  a  doctor 
in  some  medical  school.  See  Hewitt  v. 
Charier,  16  Pick.  353  ;  Spaulding  v.  Al- 
ford,  1  Pick.  33 ;  Smith  v.  Tracy,  2 
Hall,  465  ;  Berry  v.  Scott,  2  Harr.  & 
Gill,  92.  In  some  Stiftes  it  has  beeu 
held,  that  although  such  restrictive  sta- 
tutes have  been  repealed,  a  physician 
cannot  recover  for  services  performed 
before  such  repeal.  Warren  v.  Saxby, 
12  Verm.  146 ;  Nichols  v.  Poulson,  6 
Ohio,  305  ;  Bailey  v.  Mogg,  4  Denio, 
60 ;  contra,  Hewitt  v.  Wilcox,  1  Met. 
154.  A  physician  undertakes  to  em- 
ploy usual  skill,  but  not  to  cure.  Gal- 
laher  v.  Thompson,  Wright,  466.  He 
may,  however,  make  a  conditional  con- 
tract, that  if  he  does  not  cure  he  shall 
not  be  paid  ;  such  a  contract  is  valid ; 
and  in  such  case  he  cannot  recover  for 
his  services  or  his  medicines,  unless  he 
shows  a  performance  of  the  condition 
on  his  part.  Smith  v.  Hyde,  19  Verm. 
54.  It  is  not  necessary,  however,  in 
order  to  constitute  such  a  conditional 
contract,  that  a  specific  price  should  be 
agreed  upon.  In  case  of  a  cure  he  will 
be  entitled  to  a  reasonable  compensa- 
■  tion.    Mock  v.  Kelly,  3  Ala.  387. 

(c)  Clark  v.  Smith,  14  Johns.  326; 
Eees  V.  Lines,  8  C.  &  P.  126 ;  which 
was  an  action  of  assumpsit.  The  first 
count  of  the  declaration  was  on  a  spe- 
cial agreement  for  the  plaintiff'  to  build 
a  house  for  the  defendant,  at  an  agreed 
price,  and  stated  that  the  plaintiff  had 
bestowed  work  upon  the  h>ouse,  and  that 
the  defendant  abandoned  the  contract, 
and  hindered  the  plaintiff  from  com- 
pleting it ;  2d  count,  for  goods  sold. 
[560] 


Pleas,  non-assumpsit,  and  that  the  de- 
fendant did  not  abandon  the  contract, 
or  prevent  the  plaintiff  from  completing 
the  house.  The  particulars  of  demand 
were  for  work  and  materials  under  the 
agreement.  Held,  that  if  the  defendant 
had  not  hindered  the  plaintiff  from 
completing  the  house,  the  plaintiff  could 
not  recover  any  thing,  except  for  extra 
work,  which  was  not  in  the  contract, 
and  that  the  fact  that  the  defendant, 
when  asked  for  money,  had  said  that 
he  would  never  pay  a  farthing,  was  not 
proof  that  the  contract  had  been  aban- 
doned, as  the  defendant  was  not  then 
liable  to  pay  any  thing,  the  work  not 
being  completed.  —  So  where  A.  en- 
gaged to  convey  away  certain  rubbish 
for  B.  at  a  specified  sum,  under  a  fraud- 
ulent representation  by  B.  as  to  the 
quantity  of  rubbish  which  was  to  be  so 
conveyed.  Held,  that  in  an  action  for 
the  work  actually  done,  A.  could  reco- 
ver only  according  to  the  terms  of  the 
special  contract,  although  when  he  dis- 
covered the  fraud  he  might  have  repu- 
diated the  contract,  and  sued  B.  for  de- 
ceit. Selway  v.  Fogg,  5  M.  &  W.  83. 
If  the  whole  of  such  special  contract 
is  executed  on  the  plaintiff" 's  part,  and 
the  time  of  payment  has  elapsed,  general 
assumpsit  may  be  maintained ;  and 
the  measure  of  damages  will  be  the 
rate  of  compensation  fixed  by  the  spe- 
cial contract.  Bank  of  Columbia  v. 
Patterson,  7  Cranch,  299 ;  Perkins  i'. 
Hart,  11  Wheat.  237  ;  Chesapeake  and 
Ohio  Canal  v.  Knapp.  9  Peters,  541  ; 
Baker  v.  Corey,  19  Pick.  496. 

(d)  Code  civile,  bk.  3,  tit.  8,  art.  1793. 


CH.   X.] 


CONTRACTS   FOR  SERVICE   GENERALLY. 


541 


The  party  cannot  recover  for  extra  work,  or  even  for  better 
materials  used,  if  he  had  not  the  authority  of  the  other  party 
therefor,  (e)  But  the  authority  will  be  implied  if  the  em- 
ploying party  saw  or  knew  of  the  work  or  materials  in  time 
to  object  and  stop  the  work,  without  injury  to  himself,  and 
not  under  circumstances  to  justify  his  belief  that  no  charge 
was  intended,  and  did  not  object,  but  received  and  held  the 
benefit  of  the  same.  (/)  And  if  he  received  from  the  em- 
ployed an  estimate  of  the  cost  of  such  extra  work,  and  then 
ordered  it,  the  party  employed  might  be  bound  by  that  esti- 
mate. And  if  the  changes  were  such  that  the  employer  need 
not  infer  that  they  involved  any  additional  expense,  and  he 
was  not  so  informed,  an  express  assent  to  them  does  not  imply 
a  promise  to  pay  for  them,  because  it  is  fair  to  suppose  that 


(e)  Hort  V.  Norton,  1  McCord,  22 ; 
"Wilmot  V.  Smith,  3  C.  &  P.  453,  where 
it  was  ruled  by  Lord  Tenterdcn  that  if 
A.  agrees  to  make  an  article  of  certain 
materials  for  a  stipulated  price,  but  puts 
in  materials  of  a  better  kind,  he  is 
not  at  liberty  on  that  account  to  charge 
more  than  the  stipulated  price,  nor  can 
he  require  the  article  to  be  returned,  be- 
cause the  buyer  will  not  pay  an  in- 
creased price  on  account  of  the  better 
materials.  For  labor  and  service  vo- 
luntarily done  by  one  for  another,  Mitli- 
out  his  privity  or  consent,  however 
meritorious  or  beneficial  it  may  be  to 
him,  as  in  saving  his  property  from  de- 
struction by  fire,  itself  affords  no  ground 
for  an  action.  Bartholomew  v.  Jack- 
son, 20  Johns.  28.  Neither  can  a 
tenant  recover  of  his  landlord  for  re- 
pairs upon  the  demised  premises,  unless 
there  was  a  special  agreement  by  the 
latter  to  pay  for  tliem.  Mumford  v. 
Brown,  6  Cowen,  475. 

(/)  In  Lovelock  v.  King,  1  M.  & 
Kob.  60,  a  very  important  and  whole- 
some principle  was  laid  down  upon  the 
subject  of  extra  work,  where  there  is  a 
specific  contract  for  certain  work  at  a 
fixed  price.  The  action  was  assumpsit 
on  a  carpenter's  bill  for  alterations  in  a 
house  of  the  defendant.  Lord  Tenter- 
den,  in  summing  up  to  the  jury,  ob- 
served : —  "That  the  case,  although 
very  common  in  its  circumstances,  in- 
volved a  very  important  principle,  and 
required  their  very  serious   considera- 


tion. In  this  case,  as  in  most  others  of 
the  kind,  the  work  was  originally  un- 
dertaken on  a  contract  for  a  fixed  sum. 
A  person  intending  to  make  alterations 
of  this  nature  generally  consults  the 
person  whom  he  intends  to  employ,  and 
ascertains  from  him  the  expense  of  the 
undertaking;  and  it  will  very  frequent- 
ly depend  on  this  estimate  whether  he 
proceeds  or  not.  It  is  therefore  a  great 
hardship  upon  him  if  he  is  to  lose  the 
protection  of  this  estimate,  unless  he 
fully  understands  that  such  conse- 
quences will  follow,  and  assents  to 
them.  In  many  cases  he  will  be  com- 
pletely ignorant  whether  the  particular 
alterations  suggested  will  produce  any 
increase  of  labor  and  expenditure;  and 
I  do  not  think  that  the  mere  fact  of  as- 
senting to  them  ought  to  deprive  him 
of  the  protection  of  his  contract.  Some- 
times, indeed,  the  nature  of  the  altera- 
tions will  be  such  that  he  cannot  fail  to 
be  aware  that  they  must  increase  the 
expense,  and  cannot  therefore  suppose 
that  they  are  to  be  done  for  the  con- 
tract price.  But  where  the  departures 
from  the  original  scheme  are  not  of  that 
character,  I  think  the  jury  would  do 
wisely  in  considering  that  a  party  docs 
not  abandon  the  security  of  his  con- 
tracts by  consenting  that  such  altera- 
tions shall  be  made,  unless  he  is  also 
informed,  at  the  time  of  the  consent, 
that  the  effect  of  the  alteration  will  be 
to  increase  the  expense  of  the  work." 

[5G1] 


542 


THE  LAW  OF  CONTRACTS. 


BOOK  III. 


he  believed  they  were  done  under  the  contract,  and  assented 
to  only  on  those  terms.  If  the  changes  necessarily  imply  an 
increased  price,  and  he  expressly  authorizes,  or  silently,  but 
with  full  knowledge,  assents  to  them,  he  is  then  bound  to 
pay  for  them.  The  question  may  then  arise,  whether  he  is 
to  pay  for  them  according  to  the  usual  rate  of  charging  for 
such  work,  with  no  reference  to  the  contract,  or  whether  he 
must  pay  only  according  to  the  rate  of  the  contract.  Some 
cases  hold  the  former ;  but  we  think  the  better  practice  and 
the  better  reason  in  favor  of  the  latter,  (g) 


(g)  la  McCormick  v.  Connoly,  2 
Bay,  401,  it  was  said  that  where  a  con- 
tract is  made  for  any  building,  of  what- 
ever size  or  dimensions,  it  becomes  a 
law  to  both  parties,  and  they  are  both 
bound  by  it  and  whatever  additions  or 
alterations  are  made  in  such  building, 
they  form  a  new  contract,  cither  express 
or  implied,  and  must  be  paid  for  agree- 
ably to  such  new  contract.  See  Wright 
V.  Wright,  1  Litt.  179.  In  Dubois  v. 
Del.  &  Hud.  Canal  Co.  12  Wend.  334, 
a  party  entered  into  an  agreement  for 
the  construction  of  a  section  of  a  canal, 
by  which  he  was  to  receive  a  given 
price  per  cubic  yard  for  ordinary  ex- 
cavation, and  an  incrcAsed  sum  per 
cubic  yard  for  excavation  of  rock,  but 
no  compensation  was  provided  for  the 
excavation  of  hard  pan.  During  the 
progress  of  the  work  a  large  quantity 
of  the  latter  substance  was  excavated, 
a  fair  remuneration  for  which  exceed- 
ed the  highest  price  specified  in  the 
contract  for  any  species  of  work,  and 
the  parties  whilst  the  section  was  con- 
structing, treated  the  excavation  of 
hard  pan  as  not  embraced  in  the  con- 
tract, and  after  its  completion  it  was 
conceded  by  him  for  whom  the  work 
was  done  that  the  contractor  was  enti- 
tled to  compensation  for  such  Mork,  be- 
yond the  price  fixed  for  ordinary  ex- 
cavation ;    it  was   held    that  the    con- 

[562] 


tractor  was  entitled  to  recover  for  such 
work  upon  a  quantum  meruit  whatever 
he  could  show  the  work  was  worth. 
In  Tebbetts  v.  Haskins,  16  Maine,  288, 
where  a  contract  in  writing  had  been 
made  between  two  persons,  wherein  one 
agreed  to  build  a  house,  and  the  other 
to  pay  a  certain  sum  therefor,  and  which 
had  afterwards  been  abandoned  by  them, 
and  a  house  had  been  built  by  one  party 
to  the  written  contract  for  the  other 
party  and  two  others ;  it  was  held  that 
it  was  not  necessary  to  prove  an  ex- 
press contract,  but  that  one  might  be 
implied  ;  and  that  the  price  for  build- 
ing the  house  was  not  to  be  ascertained 
from  that  fixed  in  the  written  contract. 
In  De  Boom  v.  Priestly,  1  Cala.  206, 
which  was  an  action  on  a  quantum  meruit, 
the  court  held  that  where  there  has  been 
a  special  contract  which  is  afterwards 
deviated  from,  the  party  cannot  sue 
thereon,  but  must  bring  his  action  on 
an  implied  contract,  and  at  the  trial  the 
damages  must  be  graduated  according 
to  the  terms  of  the  original  contract,  so 
far  as  the  work  can  be  traced  under  it. 
And  in  Farmer  v.  Francis,  12  Ired.  L. 
282,  it  is  held  that  a  party  working  after 
the  time  limited  for  the  performance  of 
a  contract  is  confined  in  his  action  to 
the  rate  of  compensation  fixed  by  the 
contract.  The  same  doctrine  is  held  in 
Jones  V.  Woodbury,  11  B.  Mon.  167. 


CH.    XI.]  MARRIAGE.  643 


CHAPTER  XL 


MARRIAGE. 


We  have  now  to  consider,  first,  contracts  to  marry;  then 
contracts  in  relation  to  a  future  marriage ;  then  contracts  in 
restraint  of  marriage  ;  and,  lastly,  the  contract  of  marriage. 


SECTION  I. 

CONTRACTS   TO   MARRY. 

Contracts  to  marry  at  a  future  time  were  once  regarded 
by  the  English  courts  with  disfavor.  They  "  should  be 
looked  upon,"  said  Lord  Hardwicke,  "  with  a  jealous  eye  ;  " 
and  Lord  Mansfield  quoted  this  remark  with  approbation,  (h) 
But  it  is  now  perfectly  well  settled,  both  in  England  and  in 
this  country,  and  indeed  has  been  for  a  considerable  time, 
that  these  contracts  are  as  valid  and  effectual  in  law  as  any  ; 
and  that,  in  actions  upon  them,  damages  may  be  recovered, 
not  only  for  pecuniary  loss,  but  for  suffering,  and  injury  to 
condition  and  prospects,  (i)  The  reason  is  obvious;  mar- 
riages can  seldom  be  celebrated  simultaneously  with  betroth- 
ment,  or  engagement;  a  certain  time  must  intervene  ;  and  it 
would  be  very  unjust  to  leave  parties  who  suffer  by  a  breach 
of  a  contract  of  such  extreme  importance  wholly  remediless. 

(/i)  Holcroft  V.    Dickenson,    Carter,  This  particular  phrase  is  not  found  in 

233;  Key  v.  Braclshaw,  2  Vern.  102;  Lord  Hardwicke's  decision  as  reported, 

Woodhousc  V.  Shcpley,  2  Atkyns,  539  ;  but  the  opinion  may  be  gathered  from 

Lowe  V.  Peers,  4  Bur.'2230.     In  tliis  last  what  he  says, 
case  Lord  Mansfield  says  : — "  All  these 

contracts   should   be   looked   upon  (as         («)  Boynton  y.  Kellogg,  3  Mass.  189; 

Lord  Ihmlivicke  said  in  Woodhousc  i'.  Paul  v.  'Prazier,  3   Mass.  71  ;  Wight- 

Shcpley,)  with  a.  jealous  eye;  even  sup-  man  v.  Coatcs,  1.5  IMass.   1  ;  M^organ  v. 

posing  them  clear  of  any  direct  fraud."  Yarborough,  5  Louis.  Ann.  317. 

[563] 


544  THE    LAW   OF    CONTKACTS.  [bOOK   III. 

The  promises  must  be  reciprocal ;  {j)  but  they  need  not  be 
made  at  the  same  time  ;  for  if  an  ofl'er  be  made,  though  re- 
tractable until  acceptance,  yet  if  not  retracted  it  remains  for 
reasonable  time  open  for  acceptance,  and  when  accepted  the 
contract  is  complete. 

An  apparent  exception  as  to  this  necessity  of  reciprocity 
is  taken  where  the  promise  to  marry  is  made  by  deed. 
There,  as  the  seal  implies  consideration,  no  other  is  strictly 
necessary ;  but  the  covenantee  must  be  ready,  able,  and  will- 
ing to  receive  the  covenantor  in  marriage.  The  plaintifl 
need  not  aver  or  prove  a  promise  on  his  or  her  part;  and  if 
the  plaintiff  be  a  woman,  she  need  not  aver  or  prove  an  offer 
by  her ;  "  it  is  well  enough  without  saying  ohtulit  se  at  all, 
because  she  was  se7nper  parata.  The  man  is  ducere  uxo- 
reni.''^  (k)  "  The  modesty  of  the  sex  is  considered  by  the 
common  law,"  says  Lord  Coke.  "  It  can  hardly  be  expected 
that  a  lady  should  say  to  a  gentleman,  "  I  am  ready  to  marry 
you,  pray  marry  me."  (/) 

A  woman  is  doubtless  bound  by  such  a  covenant  as  well 
as  a  man ;  yet  it  would  be  regarded  with  more  suspicion ; 
and  if  such  an  obligation  were  obtained  by  a  man  who  gave 
no  corresponding  promise  on  his  part,  and  it  were  obvious 
that  he  intended  to  bind  her  but  leave  himself  at  liberty,  it 
would  probably  be  set  aside  in  equity.  Where  the  promise 
is  mutual,  it  was  long  since  settled  that  an  action  for  a 
breach  of  the  contract  may  be  maintained  against  the  wo- 
man, (w) 

This  action  cannot  be  maintained  against  an  infant;  and 
some  question  has  been  made  whether  an  infant  can  main- 
tain this  action  ;  because  the  promise  of  the  infant  being  void 
or  voidable,  the  contract  is  not  mutual,  and  is  without  consi- 
deration.    But  in  many  cases  an  infant  may  bring  an  action 


O')  Hebden  r.  Rutter,  1   Sid.  180,  1  331,  and  in  Wetmore  i-.  Wells,  1  Ohio 

Lev.    147;    Harrison  v.   Cage,    Carth.  State  Reps.  26,  it  is  decided  that  where 

467  ;  Stretch  v.  Parker,  1  Rol.  Abr.  22,  tlie  defendant's  promise  is  proved,  the 

pi.  20.  female  may  prove  her  own  acts  and  de- 

(k)  Holcroft  V.  Dickenson,    1    Free-  clarations  in  order  to  show  iicr  assent, 

man,  347.  See  also  ISIorgan  v.  Yarborough,  5  Louis. 

(I)  Seymour  v.  Gartside.  2  D.  &  R.  Ann.  317. 

57.     See   Wells   v.    Padgett,   8   Barb.  (w)  Harrison  v.  Cage,  1  Ld.  Raym. 

323.     In  Moritz  v.  Mclhorn,  13  Penn.  386,  1  Salk.  24. 

[564] 


CH.   XI.]  MARRIAGE.  *545 

for  breach  of  contract  against  the  adult,  where  the  adult 
could  not  sue  the  infant  for  a  breach  on  his  or  her  part.  It 
*  seems  to  be  distinctly  settled  that  this  is  so,  in  the  case  of  a 
contract  to  marry,  [n] 

The  very  words,  or  time,  or  manner  of  the  promise  need 
not  be  proved  ;  for  it  may  be  inferred  from  circumstances.  It 
may  be  that  this  inference  is  sometimes  made  too  easily,  and 
that  juries,  or  perhaps  courts,  justify  the  reproach,  that  feeble 
evidence  is  sometimes  held  sufficient  to  prove  such  a  promise. 
But  it  must  be  remembered  that  such  engagements  are  often, 
if  not  usually  made  without  witnesses,  and  are  not  often  re- 
duced to  writing.  A  requirement  of  precise  and  direct  testi- 
mony would  facilitate  fraud,  more  perhaps  than  in  any  other 
class  of  contracts,  and  fraud  that  might  work  extreme  mis- 
chief. It  has  therefore  been  wisely  decided  that  the  contract 
may  be  inferred  from  the  conduct  of  the  parties,  and  from  the 
circumstances  which  usually  attend  an  engagement  to  marry  ; 
as  visiting,  the  understanding  of  friends  and  relations,  pre- 
parations for  marriage,  and  the  reception  of  the  party  by  the 
family  as  a  suitor. 

Where  the  promise  by  the  defendant  was  proved,  the  de- 
meanor of  the  plaintiff,  being  that  of  a  betrothed  woman, 
was  held  to  be  sufficient  evidence  of  her  promise,  (o)     And 

(n)  Holt  V.    Ward,    Strange,    937  ;  no  direct  evidence  of  an  express  pro- 

Willard  v.  Stone,  7  Cow.  22  ;  Hunt  v.  mise,  the  action  could  not  be  maintain- 

Peake,  5   Cow.   475  ;  Pool  v.  Pratt,   1  ed.     But  this  objection  was  overruled 

Chip.  252.  by  the  judge  ;  and  the  jury  were   in- 

(o)  In  the  case  of  Hutton  v.  Manscll,  structed  that  if,  from  the  letters  of  the 
3  Salk.  16,  tried  before  Holt,  C.  J.,  tlie  defendant  read  in  evidence,  and  the 
promise  of  the  man  was  proved,  but  no  course  of  his  conduct  towards  the  plain- 
actual  promise  on  the  woman's  side,  titf,  they  were  satisfied  that  there  was  a 
yet  he  held  that  there  was  sufficient  evi-  mutual  understanding  and  engagement 
dence  to  prove  that  the  woman  likewise  between  the  i>arties  to  marry  each  other, 
promised,  because  she  carried  herself  as  they  might  find  for  the  plaintiff.  To 
one  consenting  and  approving  the  pro-  tliis  ruling  and  instruction  the  defend- 
mise  of  the  man.  This  question  was  ant  excepted,  and  the  case  having  been 
much  discussed  in  the  case  of  AVight-  carried  up,  Parker,  C.  J.,  delivering  the 
man  V.  Coates,  15  Mass.  1.  That  was  opinion  of  the  court,  said:  —  "As  to 
an  action  of  assumpsit  on  a  promise  to  the  tedniical  ground  upon  whidi  the 
marry  the  plaintiff,  and  a  breach  thereof  objection  to  the  verdict  now  rests,  we 
by  refusal,  and  having  married  another  entertain  no  doubts.  The  exception 
woman.  At  the  trial,  tiie  evidence  of  taken  is,  that  there  was  no  direct  evi- 
a  promise  resulted  from  sundry  letters  dence  of  an  express  promise  of  mar- 
written  to  the  plaintiff  by  thedefend-  riagc  made  by  the  defendant.  The  ob- 
ant,  and  from  his  jittentions  to  lier  for  a  jection  implies  that  there  was  indirect 
considerable  lengtii  of  time.  It  was  ob-  evidence  from  whiehsueh  a  promise  may 
jected  by  the  defendant,  that  there  being  have  been  inferred  ;  and  tiic  jury  werein- 

VOL.   I.  48  [565] 


546 


THE   LAW   OF   CONTKACTS. 


[book  III. 


consent  of  parents  in  the  presence  of  a  daughter,  with  the 
absence  of  objection  on  her  part,  is  held  to  imply  her  con- 
sent ;  (p)  nevertheless,  language  used  to  third  parties,  amount- 
ing to  an  expression  of  intention  to  marry  the  plaintiff,  but 
not  uttered  in  the  presence  of  the  plaintiff,  do  not  in  general 
prove  a  promise  to  marry,  (q)  But  statements  made  to  a 
father,  who  had  a  right  to  make  such  inquiries,  and  to  receive 
a  true  answer,  especially  where  corroborated  by  visits  and 
the  conduct  of  the  parties,  are  not  only  sufficient  evidence  of 
a  promise,  but  although  the  statement  of  the  defendant  is  of 
a  promise  to  marry  the  plaintiff  in  six  months,  and  the  count 
is  upon  a  promise  to  marry  generally,  or  in  a  reasonable  time, 
the  jury  may  infer  from  the  statement  a  general  promise  to 
marry,  (r) 

It  has  been  contended  that  the  promise  should  be  in  writ- 
ing, under  the  clause  in  the  4th  section  of  the  Statute  of 
Frauds,  which  provides  that  no  action  shall  be  brought 
whereby  to  charge  any  person  upon  any  agreement  made 
upon  consideration  of  marriage ;  but  the  courts  of  England, 


structed  that  if,  from  the  letters  written 
by  the  defendant,  as  well  as  his  conduct, 
they  believed  that  a  mutual  engage- 
ment .subsisted  between  the  parties,  they 
ought  to  find  for  the  plaintiff.  They 
made  the  inference,  and  without  doubt 
it  was  justly  drawn.  Is  it  then  neces- 
sary that  an  express  promise  in  direct 
terms  should  be  proved  1  A  necessity 
for  this  would  imply  a  state  of  public 
manners  by  no  means  desirable.  That 
young  persons  of  different  sexes,  in- 
stead of  having  their  mutual  engage- 
ments inferred  from  a  course  of  devoted 
attention,  and  apparently  exclusive  at- 
tachment, which  is  now  the  common 
evidence,  should  be  obliged,  before  they 
consider  themselves  bound,  to  call  wit- 
nesses, or  execute  instruments  under 
hand  and  seal,  would  be  destructive  of 
that  chaste  and  modest  intercourse 
which  is  the  pride  of  our  country ;  and 
a  boldness  of  manners  would  probably 
succeed,  by  no  means  friendly  to  the 
character  of  the  sex  or  the  interests  of 
society.  A  mutual  engagement  must 
be  proved  to  support  this  action ;  but 
it  may  be  proved  by  those  circum- 
stances which  usually  accompany  such 
a  connection."    In  Honyman  v.  Camp- 

[566] 


bell,  2  Dow  &  Clark,  282,  the  Lord 
Chancellor  said :  — "I  deny  that  court- 
ship, or  an  intention  to  marry,  however 
plainly  made  out,  can  constitute,  or,  in 
the  language  of  the  Scotch  law,  is 
equipollent  to  a  promise.  There  must 
be  a  promise,  and  the  promise  must  be 
mutual  and  binding  on  both  parties ; 
for  the  law  attaches  on  the  promise 
and  not  on  the  intention.  But  still, 
courtship  is  a  most  material  circum- 
stance, when  we  have  to  consider  whe- 
ther there  was  a  promise.  When  we 
consider  how  natural  it  is  that  lovers 
should  maiTy,  and  that  marriage  is 
usually  the  result  of  courtship,  and  that 
in  these  cases  mutual  promises  are  so 
common,  although  courtship,  or  inten- 
tion, will  not  supply  the  place  of  a  pro- 
mise, yet  they  come  so  near,  that  if 
these  are  once  made  out,  we  get  on  a 
good  way  towards  our  journey's  end." 
See,  also,"  Southard  v.  Rexford,  6  Cow. 
254 ;  Weaver  v.  Bachert,  2  Barr,  80. 

(/))  Daniel    v.  Bowles,  2   C  &    P. 
553. 

(q)  Cole  V.   Cottingham,  8  C.  &  P. 
75. 
.   (r)  Potter  V.  Deboos,  1  Stark.  82. 


CH.   XI.]  MAKRIAGB.  *547 

after  once  so  deciding,  (s)  have  since  taken  a  distinction, 
*  which  is  certainly  a  very  nice  one,  between  promises  to  marry 
and  promises  in  consideration  of  marriage,  {t)  This  clause 
is  not  generally  contained  in  the  Statutes  of  Frauds  of  our 
States;  but  it  has  been  held  in  this  country  that  a  promise 
to  marry  at  the  end  of  five  years  is  within  that  clause  of  the 
statute  which  requires  that  a  promise  not  to  be  performed 
within  one  year  from  the  making  shall  be  in  writing,  [u) 

A  contract  to  marry,  without  specification  of  time,  is,  as 
we  have  seen,  a  contract  to  marry  within  a  reasonable  time ; 
each  party  having  a  right  to  reasonable  delay,  but  not  to  in- 
definite postponement ;  nor  to  delay  without  reason  or  be- 
yond reason.  If  both  parties  delay  the  fulfilment  of  the  con- 
tract unreasonably,  it  may  perhaps  be  considered  as  aban- 
doned by  mutual  consent,  in  the  absence  of  evidence  to 
negative  this  consent. 

These  contracts,  like  most  others,  may  be  on  condition ; 
and  if  the  condition  be  legal  and  reasonable,  the  liability  of 
the  parties  under  it  attaches  as  soon  as  the  condition  is  satis- 
fied, (y)  But  it  may  easily  happen  that  the  condition  shall 
be  such  as  to  be  void,  leaving  the  contract  valid  ;  as  if  it  be 
frivolous  or  impossible,  and  evidently  introduced  by  one 
party  in  fraud  of  the  other.  And  it  may  also  happen  that 
the  condition  shall  make  the  contract  void.  Thus  contracts 
to  marry  at  the  death  of  parents  or  relations  from  whom 
money  is  expected,  and  who  are  kept  in  ignorance  of  the 
contract,  are  regarded  with  great  dislike  by  courts,  and  would 
probably  be  declared  void,  unless  the  circumstances  cleared 
them  from  suspicion,  {w)  And  if  the  condition  were  entirely 
uncertain,  or  very  remote,  the  contract  might  be  regarded  as 
made  in  restraint  of  marriage,  as  it   might  prevent  either 


(s)  Philpot  V.  Wallet,  3  Lev.  65.  this  last  case  a  bill  was  brought  to  bo 

\t)  Cork  V.  Baker,  1  Str.  34 ;  Harri-  relieved    against   a   marriage    brocage 

son  V.  Cage,  1  Ld.  Raym.  387.  bond ;  and  it  appearing  that  tlie  mar- 

(u)  Derby  v.  Phelps,  2  New  Hamp.  riage  was  brought  about  without   tlie 

515.  consent  of  the  young  woman's  parents, 

[v)  Cole  V.  Cottingham,  8  C   &  P.  wlio  were  then  living,  tlie  Lord  Cliau- 

75 ;  Atchinson  v.  Baker,  Peake's  Add.  ccllor  "  for  that  reason  alone  decreed 

Gas.  103.  the  bond  to  be  delivered  up,  terming  it 

{w)  Woodhouse  v.   Shepley,  2  Atk.  a  sort  of  kidnapping." 


539  ;  Drury  v.  Hooke,  1  Vera.  412.    In 


[567] 


548^ 


THE   LAW   OF  CONTRACTS. 


BOOK  III. 


party  from  marrying  for  a  very  long,  or  for  an  indefinite 
period ;  and  it  would  be  held  void  on  that  ground,  [x) 

*  If  the  promise  be  to  marry  on  request,  a  request  should  be 
alleged  and  proved ;  but  this  is  not  necessary  when  the  de- 
fendant is  incapacitated  from  marrying  by  his  or  her  own 
act.  (/y) 

The  defences  which  may  be  urged  against  an  action  to 
enforce  a  promise  to  marry  are  very  numerous.  Consan- 
guinity within  the  Levitical  degrees  in  England,  (2:)  and  in 
this  country,  those  within  which  marriage  is  prohibited  by 
the  statutes  of  the  several  States.  So,  the  bad  character  of  the 
plaintiff;  or  his  or  her  lascivious  conduct.  The  cases  generally 
exhibit  this  defence  where  the  woman  is  plaintiff;  but  it  ought 
with  equal  justice,  and  on  moral  as  well  as  on  public  grounds, 
to  be  permitted  to  the  woman  when  she  is  defendant ;  it  was 
so  held  in  the  case  of  Baddeley  v.  Mortlock,  (a)  and  undoubt- 
edly would  be  so  held  in  this  country.     If  the  defence  be 


(:r)  Hartley  v.  Eice,  10  East,  22. 
This  was  an  action  on  a  wager  that  the 
plaintift'  would  not  be  married  in  six 
years.  It  was  endeavored  to  distin- 
guish this  from  other  contracts  in  re- 
straint of  marriage,  on  the  ground  that 
it  was  not  for  life,  but  for  a  time  cer- 
tain ;  it  was  held,  however,  that  a  re- 
straint for  a  time  certain  falls  within  the 
same  policy  of  the  law,  and  makes  the 
contract  void. 

(y)  Short  v.  Stone,  8  Q.  B.  358; 
Caines  v.  Smith,  15  M.  &  W.  189;  Har- 
rison V.  Cage,  1  Ld.  Raym.  386 ;  Mill- 
ward  V.  Littlewood,  1  E.  L.  &  E.  408. 

(z)  In  Harrison  v.  Cage,  1  Ld.  Eaym. 
387,  it  is  said  that  consanguinity  within 
the  Levitical  degrees  may  be  pleaded 
in  bar  or  given  in  evidence  under  non- 
assumpsit.  It  has  been  sometimes  in- 
timated that  previous  marriage  would 
be  a  defence.  This  must  be  on  the 
ground  that  the  promised  marriage 
would  in  that  case  be  unlawful,  as  in 
the  case  of  consanguinity.  But  I  take 
the  true  rule  to  be,  that  if  the  marriage 
would  be  unlawful,  and  this  unlawful- 
ness was  known  to  the  plaintiff  when 
making  the  contract,  then  the  plaintiff 
can  sustain  no  action  for  the  breach  of 
it.  Now  consanguinity  within  the  pre- 
scribed degrees  may  be  presumed  to  be 
known  to  both  parties.    Not  so  with 

[568] 


previous  marriage.  And  certainly  a 
married  man  who  promised  to  marry  a 
single  woman,  who  did  not  know  his 
marriage,  is  liable  to  an  action  for  the 
breach  of  his  promise,  for  it  was  his 
own  fault  that  he  promised  what  be 
could  not  perform.  This  seems  to  be 
taken  for  granted  by  court  and  counsel 
in  Daniel  v.  Bowles,  2  C.  &  P.  553. 

(a)  Holt,  N.  P.  151.  In  this  case  it 
was  proved  that  charges  had  been  made 
against  the  moral  character  of  the  plain- 
tiff, which  he  did  not  clear  away,  and 
the  defendant  tiiereon  refused  to  marry 
him.  Gibbs,  C.  J.,  said:  —  "Having 
promised  tiie  plaintiff  marriage,  she 
must  absolve  herself  upon  some  legal 
grounds.  If  a  woman  improvidently 
promise  to  marry  a  man,  who  turns  out 
upon  inquiry  to  be  of  bad  character, 
she  is  not  bound  to  perform  her  pro- 
mise. But  she  must  show  that  the 
plaintiff  is  a  man  of  bad  character.  The 
accusation  is  not  enough.  The  facts 
charged  were  capable  of  proof.  The 
existence  of  the  rumor  is  not  sufficient 
to  discharge  her  from  her  promise. 
Without  proof  that  the  charges  were 
founded,  she  is  not  absolved  from  her 
contract.  But  it  affects  the  damages." 
The  jury  accordingly  returned  a  verdict 
for  the  plaintiff,  damages  one  shilling. 


CH.   XI.] 


MARRIAGE. 


^549 


general  bad  character,  evidence  of  reputation  is  receivable  ; 
for,  says  Lord  Kenyon,  "  character  is  the  only  point  in  issue ; 
*public  opinion,  founded  on  the  conduct  of  the  party,  is  a  fair 
subject  of  inquiry."  (b) 

If  the  defence  rest  on  specific  allegations  of  misconduct, 
these  must  be  strictly  proved ;  (c)  and  if  the  defendant  knew 
the  general  bad  character,  or  the  specific  misconduct,  before 
making  the  promise,  they  constitute  no  defence,  (d)  False 
and  injurious  language  used  by  plaintiff  concerning  defend- 
ant is  a  good  defence,  (e)  So  bad  health,  if  such  as  to  inca- 
pacitate from  marriage,  or  render  it  unsafe  or  improper.  (/) 


(b)  Foulkcs  V.  Sellway,  3  Esp.  236. 
See  also  Morgan  v.  Yarborough,  5 
Louis.  Ann.  316. 

(c)  Baddeley  v.  Mortlock.  Holt,  N. 
P.  151. 

(d)  Irving  v.  Greenwood,  1  C.  &  P. 
350.  This  was  an  action  of  assumpsit 
on  a  promise  of  marriage.  The  pro- 
mise and  the  breach  were  clearly  made 
out.  But  the  defendant,  to  bar  the 
action,  gave  evidence  to  show  that  he 
eventually  broke  off  the  match,  because 
he  found  that  the  plaintifi'  was  with 
child  by  another  man.  It  was  admit- 
ted, that,  after  the  promise,  the  plaintiff" 
had  had  a  child,  but  it  was  contended 
that  the  defendant  was  its  father.  Ab- 
bot. C.  J.,  in  his  summing  up  to  the 
jury,  said  :  —  "If  you  think  that  the 
defendant  was  not  the  father  of  the 
child,  he  is  entitled  to  your  verdict ;  for 
if  any  man,  who  has  made  a  promise  of 
marriage,  discovers  that  the  person  he 
has  so  promised  to  marry  is  with  child 
by  another  man,  he  is  justified  in  break- 
ing such  promise ;  and  if  any  man  has 
been  paying  his  addresses  to  one  that 
he  supposes  to  be  a  modest  person,  and 
afterwards  discovers  her  to  be  a  loose 
and  immodest  woman,  he  is  justified  in 
breaking  any  promise  of  marriage  that 
he  may  have  made  to  her  ;  but  to  enti- 
tle a  defendant  to  a  verdict  on  that 
ground,  the  jury  must  be  satisfied  that 
the  plaintiff'  was  a  loose  and  immodest 
woman,  and  that  the  defendant  broke 
his  promise  on  that  account;  and  they 
must  also  be  satisfied  that  the  defend- 
uut  did  not  know  her  character  at  the 
time  of  the  making  of  the  promise ;  for 
if  a  man  knowingly  promise  to  marry 
such  a  person,  he  is  bound  to  do  so." 
In  Bench  v.  Merrick,  1  C.  &  K.  463,  it 

48* 


was  proved  that  the  plaintiff"  had  had  a 
child  some  ten  years  before  the  pro- 
mise, and  had  since  sustained  an  irre- 
proachable character.  Atcherley,  Serj., 
before  whom  the  case  was  tried,  said : 
"  The  great  question  in  this  case  will  be 
whether  you  believe  that,  in  the  month 
of  February,  1843,  the  defendant  knew 
the  history  of  the  plaintiff"  in  regard  to 
this  child.  If  he  did  not  know  it,  how- 
ever great  a  severity  it  may  be  on  a  wo- 
man to  rake  up  a  transaction  of  bygone 
times,  the  defendant's  second  plea  will 
be  sustained,  and  on  that  plea  the 
defendant  will  be  entitled  to  the  ver- 
dict. There  is  no  imputation  whatever 
on  the  character  of  the  plaintiff"  except 
the  transaction  of  1831.  If  the  defend- 
ant, in  your  opinion,  has  not  establish- 
ed his  defence,  there  will  then  be  the 
question  of  damages ;  and  in  that  case, 
in  consequence  of  the  misfortune  (call- 
ing it  by  no  harsher  name,)  in  1831,  the 
plaintiff"  cannot  be  said  to  be  entitled  to 
so  large  a  compensation  as  one  on 
whose  reputation  no  imputation  had 
ever  rested."  From  this  we  must  infer 
that  if  the  defendant  did  know  this  flict 
when  he  made  the  promise  which  he 
had  broken,  still  the  fact,  though  no 
defence  would  go  to  lessen  the  dama- 
ges. See  also  Boynton  v.  Kellogg,  3 
Mass.  189 ;  Palmer  v.  Andrews,  7  Wend. 
142. 

(e)  Leeds  v.  Cook,  4  Esp.  256. 

( /■)  Atchinson  v.  Baker,  Pcake's  Add. 
Cas.  103, 124.  In  this  case  the  phiintift' 
was  a  widower  upwards  of  forty  years 
of  age,  and  the  defendant  a  widow  about 
the  same  age;  when  the  promise  was 
made,  the  plaintiff"  was  ajiparently  in 
good  health,  but  the  defendant  after- 
wards discovered  that  he  had  an  abscess 

[569] 


550  TOE   LAW   OF   CONTRACTS.  [BOOK  III. 

Entire  deafness  or  blindness,  or  other  important  physical 
incapacity,  occurring  after  the  promise,  might  be  a  good 
defence  at  law;  (g)  so  would  the  disposal  of  her  property 
without  the  consent  of  the  defendant,  and  in  a  manner  inju- 
rious to  his  interests,  (gg")  It  has  been  said,  also,  that  if  a 
widow  conceals  her  previous  marriage,  and  betroths  herself 
as  a  virgin,  this  would  be  a  fraud,  and  would  avoid  the  con- 
tract, (h)  It  is  going  quite  far  to  consider  this  fact  alone  as 
constituting  a  fraud,  but  it  could  seldom  occur  but  under  cir- 
cumstances which  would  probably  determine  the  character 
of  the  concealment ;  and  if  this  were  fraudulent,  it  must  of 
course  have  the  usual  effect  of  fraud  upon  the  contract;  for 
if  obtained  by  fraud,  whatever  that  fraud  may  be,  the  con- 
tract is  void.  A  dissolution  of  the  contract  by  mutual  con- 
sent would  of  course  be  a  sufficient  defence,  but  it  must  be  a 
real  and  honest  consent,  (i)  But  a  preengagement  by  the 
defendant  is  no  sufficient  defence,  {j)  nor  is  the  fact  that  the 
defendant  was  married  at  the  time  of  the  promise,  but  the 
plaintiff  may  bring  an  action  immediately  upon  discovery,  {jj) 
Perhaps  it  ought  to  be  a  good  defence,  that  the  plaintiff, 
when  making  the  contract  for  the  breach  of  which  the  action 

in  his  breast,  and  for  that  reason  refused        (g)    Short   v.    Stone,  8   Q.   B.   369, 

to  marry  him.     Lord  Kenyan  said,  that  Lord  Denman.     A  rape  wholly  without 

if   the   condition    of    the    parties   was  the  fault  of  the  woman,  would  discharge 

changed  after  tlie  time  of  making  the  the  man  from  his  obligation.     Addison 

contract,  it  was  a  good  cause  for  either  on  Contr.  584.    And  in  France  it  seems 

party  to  break  off  the  connection  ;  that  that  loss  of  a  nose  would  be  sufficient. 

Lord  Mansfield  had  held  that  if,  after  a  At   common   law  it  would   hardly  be 

man  had  made  a  contract  of  marriage,  held   that  a  misfortune,  which   merely 

the  woman's  character  turned  out  to  be  affected   personal   beauty,  was   a  suffi- 

different  from  what  he  had  reason  to  cient  defence.    Id. 
think  it  was,  he  might  refuse  to  marry        (grj)  Taylor  ;;.  Pugh,  1  Hare,  114. 
her  without  being  liable  to  an  action,        a)  Addison  on  Contr.  581. 
and  whether  the  mnrmity  was  boduy  or         ,  •/  c      <>     .i      j       t>     r    j   /-  /^ 

mental  the  reason  was   the  same;   it  J')  ^ee  Southard  t;.  Kexford   6  Cow. 

would  be  most  mischievous  to  compel  ^64 ;  Kelly  v.  Eenfro,  9  Ala.  32o. 
parties  to  marry  who  could  never  live         (.;)  Harrison  v.  Cage,  1   Ld.  Kaym. 

hrf^pily   together.      The    plaintiff  was  387.    By  i/o/«,  C.  J.     "Precontract  is 

nonsuited,  on  the  ground  of  a  variance;  a  disabihty,  but  it  will  not  avoid   the 

but  afterwards  brought  a  fresh  action,  performance  of  your  promise,  because 

and  rebutted  the  defendant's  testimony  it  proceeds  from  your  own  act." 
as  to  the  abscess,  and  recovered  £4,000         (jj)  Millward  v.  Littlewood,  1  E.  L. 

on  proof  that  the  defendant  had  pro-  &  E.  408.     The  consideration  was  said 

raised  to  settle  £5,000  of  her  fortune  on  to  be  that  the  plaintiff  would  remain 

him,  and  the  residue,  £18,000,  on  her-  unmarried.     PoZ/ocA;,  C.  B.,  said  that  the- 

self.    A  motion  was  then  made  for  a  defendant  impliedly  promised  that  there 

new  trial,  on  the  ground  of  excessive  was  no  impedLmeut  to  his  performing 

damages,  but  the  cause  was  compromised,  his  promise. 

[570] 


CH.   XI,]  MARRIAGE.  *551 

is  brought,  was  under  an  engagement  to  another  party.  For 
instance,  if  a  woman  sues  a  man  for  a  breach  of  promise  of 
marriage,  she  must  of  course  show  that  the  promise  was  re- 
ciprocated by  her;  and  if  the  defendant  could  then  show,  that 
when  she  made  this  promise  to  him  she  was  bound  by  a 
previous  promise  to  another,  it  would  seem  to  be  just  that 
she  should  not  *  recover  for  the  violation  of  a  contract,  her 
entering  into  which  was  a  precisely  similar  violation  of  con- 
tract. But  this  question  does  not  appear  to  have  been  set- 
tled by  adjudication. 

An  offer  to  renew  or  execute  the  contract  after  a  refusal 
should  be  no  defence  ;  nor  a  change  of  feeling,  nor  the  fact  that 
another  had  supplanted  the  plaintiff  in  the  affections  of  the 
defendant.  But  it  would  seem,  on  general  principles,  to  be  a 
good  defence,  that  the  promise  was  made  on  condition  that 
the  plaintiff  would  commit  fornication  with  the  defendant ;  for 
such  a  promise  might  be  void  as  founded  upon  an  illegal 
consideration,  (k)  But  it  is  certainly  no  defence  that  the 
promise  was  made  after  fornication,  if  made  with  no  view  to 
a  repetition  of  the  offence,  or  before  fornication,  if  that  were 
not  the  consideration  of  the  promise.  If  the  defendant  pro- 
mised that  another  person  should  marry  the  plaintiff,  it  is  no 
defence  that  such  other  person  refuses  ;  because  the  defend- 
ant promised  on  his  own  responsibility  that  which  another 
person  might  prevent  from  being  done. 

Damages  are  peculiarly  within  the  power  of  the  jury  in 
cases  of  this  kind  ;  for  courts,  both  in  England  and  this  coun- 
try, are  very  unwilling  to  set  aside  a  verdict  in  these  cases 

(fc)  This  would  seem  to  be  doubtful  damages.  A  rule  nisi  for  a  new  trial 
from  Morton  v.  Fenn,  3  Doug.  211.  having  been  obtained,  on  the  ground 
This  was  an  action  for  breach  of  pro-  that  it  was  turpis  contractus,  being  on 
mise  of  marriage,  tried  before  Lord  condition  of  tlie  plaintiff  going  to  bed 
Mansfield.  The  evidence  was,  that  tlic  with  the  defendant,  Lord  Mansfield 
defendant,  who  was  a  man  of  fortune  in  said  :  —  "I  thought  the  objection  would 
Jamaica,  aged  seventy,  promised  to  not  lie  on  two  grounds.  1.  That  be- 
marry  the  plaintiff,  a  widow  of  fifty-  fore  the  marriage  act  this  would  have 
three,  if  she  would  go  to  bed  to  him  that  been  a  good  marriage,  and  the  children 
night,  which  she  did,  and  lived  after-  legitimate  by  the  rules  of  the  common 
wards  with  him  a  considerable  time.  It  law.  2.  I  thought  so,  because  the  par- 
appeared  also  that  the  defendant  several  tics  Averc  not  in  pari  delicto,  but  this 
times  afterwards  repeated  his  resolution  was  a  cheat  on  the  part  of  the  man." 
to  marry  her,  but  that  he  afterwards  mar-  After  argument,  the  court  took  time  to 
ricd  another  woman.  The  jury  found  consider,  and  in  the  meanwhile  recora- 
a  verdict  for  the  plaintiff,  with  £2,000  mended  the  parties  to  agree   that   tlic 

[571] 


552^ 


THE   LAW   OF   CONTRACTS. 


[book  III. 


on  the  ground  of  excessive  damages.  And  if  the  defendant 
has  undertaken  to  rest  his  defence,  in  whole  or  in  part,  on 
the  general  bad  character,  or  the  criminal  conduct,  of  the 
plaintiff,  and  fail  altogether  :in  the  "proof,  it  has  been  dis- 
tinctly held  that  the  jury  may  consider  this  in  aggravation  of 
damages.  (/) 

*The  promise  is  so  far  of  a  personal  nature,  that  the  breach 
of  it  gives  no  action  to  the  personal  representative  of  the 
party  injured,  unless,  perhaps,  special  damage  to  the  estate 


defendant  should  pay  the  plaintiff  £500, 
and  on  a  subsequent  day  Wallace  in- 
formed the  court  that  the  parties  had- 
consented  to  that  arrangement.  See 
also  Baldy  v.  Stratton,  11  Penn.  St.  E. 
31G. 

(/)  Southard  v.  Rexford,  6  Cow.  254. 
This  was  an  action  of  assumpsit  for 
breach  of  promise  of  marriage.  The 
plea  was  the  general  issue,  with  notice 
that  the  defendant  would  prove  in  his 
defence,  that  the  plaintiff  had,  at  va- 
rious times,  and  with  various  persons, 
specifying  them,  committed  fornication 
after  the  alleged  promise.  At  the  trial, 
the  defendent  attempted  to  prove  this 
defence,  but  failed.  The  case  was  tried 
before  Walworth,  Circuit  Justice.  The 
learned  judge,  in  charging  the  jury  in 
reference  to  the  damages  said  :  —  "In 
cases  of  this  kind  the  damages  arc  al- 
ways in  the  discretion  of  the  jury  ;  and 
in  fixing  the  amount  they  have  a  right 
to  take  into  consideration  the  nature  of 
the  defence  set  up  by  the  defendant. 
In  his  defence  he  has  attempted  to  ex- 
cuse his  abandonment  of  the  plaintiff, 
on  the  ground  that  she  is  unchaste,  and 
has  committed  fornication  with  differ- 
ent individuals.  But  it  appears  from 
the  testimony  of  his  own  witnesses  that 
her  character  in  that  respect  has  not 
been  tarnished  even  by  the  breath  of 
suspicion.  With  such  a  defence  on  the 
record,  a  verdict  for  nominal  or  trifling 
damages  may  be  worse  for  her  reputa- 
tion than  a  general  verdict  for  the  de- 
fendant. If  the  defendant  has  won  her 
affections,  and  promised  her  marriage, 
and  has  not  only  deserted  her  without 
cause,  but  has  also  spread  this  defence 
upon  the  record,  for  the  purpose  of  de- 
stroying her  character,  the  jury  will  be 
justified  in  giving  exemplary  damages." 
And  Sutherland,  J.,  in  delivering  the 
opinion  of  the  Supreme  Court,  said :  — 

•  [572] 


"  Upon  the  question  of  damages,  the 
charge  of  the  judge  appears  to  me  to 
be  unexceptionable.  There  can  be  no 
settled  rule  by  which  they  are,  in  every 
case,  to  be  regulated.  They  rest  in  the 
sound  discretion  of  the  jury,  under  the 
circumstances  of  each  particular  case ; 
and  where  the  defendant  attempts  to 
justify  his  breach  of  promise  of  mar- 
riage, by  stating  upon  the  record,  as  the 
cause  of  his  desertion  of  the  plain- 
tiff, that  she  had  repeatedly  had  crimi- 
nal intercourse  with  various  persons, 
and  fails  entirely  in  proving  it,  this  is 
a  circumstance  which  ought  to  aggra- 
vate the  damages.  A  verdict  for  nomi- 
nal or  trifling  damages,  under  such  cir- 
cumstances, would  be  fatal  to  the  cha- 
racter of  the  plaintiff;  and  it  would  be 
matter  of  regret,  indeed,  if  a  check 
upon  a  license  of  this  description  did 
not  exist  in  the  power  of  the  jury  to 
take  it  into  consideration  in  aggrava- 
tion of  damages."  In  Gough  v.  Farr, 
1  Y.  &  Jer.  477,  it  is  decided  that  the 
court  will  not,  in  an  action  for  a  breach 
of  promise  of  marriage,  grant  a  new 
trial  on  the  ground  of  excessive  dama- 
ges, unless  they  be  so  large  as  to  induce 
the  court  to  infer  that  the  jury  were 
actuated  by  undue  motives,  or  acted 
upon  a  misconception  of  the  facts.  And 
Hulloch,  B.,  said  :  —  "  The  principle 
which  governs  the  courts  in  cases  of  this 
description  is,  not  whether  they  think 
the  damages  too  large,  but  whether 
they  be  so  large  as  to  satisfy  the  court 
that  the  verdict  was  perverse,  and  the 
result  of  gross  error,  misconception,  or 
undue  motives.  There  are,  I  think,  no 
circumstances  in  this  case  to  warrant  such 
a  conclusion.  Poverty  is  pleaded  as  a 
gi'ound  for  inducing  the  court  to  inter- 
fere ;  I  am  not,  from  the  evidence,  sa- 
tisfied that  the  defendant  is  unable  to 
pay  the  damages ;  but  even  if  he  were, 


CH.  XI.] 


MARRIAGE. 


'553 


of  the  decedent  is  alleged  and  proved.  (;?i)     Nor  does  it  sur- 
vive against  the  administrator  of  the  promisor.  («) 

Whether  in  an  action  to  recover  damages  for  the  breach 
of  a  promise  of  marriage,  damages  for  seduction  may  be  rc- 
*covered,  has  been  much  questioned,  (o)  By  the  strict  rules 
of  law,  they  should,  we  think,  be  excluded,  where  the  plain- 
tiff was  in  actual  or  constructive  service,  [p)  or  lived  in  a 
State  in  which  the  statute  law  gave  her  an  action  for  the 
seduction,  and  not  otherwise ;  and  the  weight  of  authority 
seems  to  be  so.  Where  courts  held  to  this  rule  they  would 
exclude  evidence  of  seduction  as  irrelevant.  But  in  most 
cases  it  would  be  difficult  to  exclude  this  entirely,  so  as  to 
keep  the  fact  entirely  from  the  jury,  without  excluding  other 
evidence  to  which  the  plaintiff  would  certainly  be  entitled. 
And  if  the  jury  were  made  cognizant  of  the  fact,  they  would 
probably  regard  it  in  estimating  damages ;  and  probably  courts 
would  now  seldom  set  aside  a  verdict  on  this  ground,  under 
any  ordinary  circumstances.  Evidence  that  the  parents  of 
the  defendant  disapproved  of  the  engagement  has  been  re- 


that  would  not,  I  apprehend,  be  a 
ground  for  disturbing  the  verdict. 
These  are  questions  which  must  de- 
pend upon  the  circumstances  of  each 
particuhir  case  :  if  there  were  an  impu- 
tation upon  the  character  of  the  plain- 
tiff, and  the  damages  were  excessive, 
the  court  might  interfere;  nothing  of 
that  sort,  however,  appears  in  this 
case." 

(m)  Chamberlain  v.  Williamson,  2 
M.  &  S.  408. 

(n)  Stcbbins  v.  Palmer,  1  Pick.  71  ; 
Smith  V.  Sherman,  4  Cush.  408. 

(o)  Perkins  v.  Hersey,  1  Rh.  Isl. 
493,  does  not  permit  seduction  to  be 
shown  in  aggravation  of  damages.  So 
Burks  V.  Shain,  2  Bibb,  341 ;  Weaver 
V.  Bachert,  2  Barr,  80.  Contra,  Paul 
V.  Frazier,  3  Mass.  73 ;  Conn  v.  Wil- 
son, 2  Overton,  233.  In  Baldy  r. 
Stratton,  11  Penn.  St.  R.  316,  it  is  held 
that  though  seduction  cannot  be  given  in 
evidence  in  an  action  for  breach  of  pro- 
raise  of  marriage,  the  improper  conduct 
of  the  defendant,  in  which  the  plaintiff 
did  not  participate,  may  be  so  given  in  ag- 
gravation of  damages.  So  loss  of  time, 
and  expenses  incurred  in  preparations 


for  marriage,  are  grounds  of  damage, 
directly  incidental  to  the  breach  of  a 
promise  of  marriage,  but  not  of  special 
damage.  In  Tullidge  v.  Wade,  3  Wils. 
18,  and  Foster  v.  Schoffield,  1  Johns. 
297,  it  was  held  that  in  an  action  for  se- 
duction, the  promise  of  marriage  could 
not  be  given  in  evidence.  But  this  rule 
—  if  it  be  law — is  not  usually  regarded 
in  practice.  In  Wells  v.  Padgett,  8 
Barb.  324,  (published  since  the  first  edi- 
tion of  this  work,)  it  is  decided  that  in  an 
action  for  breach  of  promise,  the  seduc- 
tion of  tlie  plaintiff  is  to  be  regarded  as 
a  breach  of  the  promise  in  all  cases  in 
which  it  is  followed  by  abandonment 
and  a  refusal  to  marry,  and  is  to  be 
considered  by  the  jury  in  estimating  the 
damages.  The  same  doctrine  is  held  in 
King  V.  Kersey,  2  Cart.  (Ind.)  402. 

(//)  That  is,  in  service  to  one  who 
could  bring  the  action.  In  Postle- 
thwaite  v.  Parkes,  3  Burr.  1878,  the 
plaintiff  hired  herself  to  defendant,  who 
seduced  her  and  then  turned  her  away 
when  pregnant,  and  she  returned  to  her 
father,  and  the  father  brouglit  an  action 
per  quod  servitium ;  and  it  was  held  that 
the  action  was  not  maintainable. 

[573] 


554  *  THE  LAW   OP  CONTRACTS.  [BOOK  III. 

ceived  in  mitigation  of  damages,  (q)  A  bill  in  equity  has 
been  sustained  to  compel  a  party  to  discover  whether  he 
has  promised  to  marry  the  plaintiff,  (r) 


SECTION  II. 

PROMISES   IN  RELATION  TO   SETTLEMENTS   OR  ADVANCES. 

A  promise  to  give  to  a  woman,  or  settle  upon  her,  a  specific 
sum  or  estate  on  her  marriage,  is  valid.  Marriage  is  regard- 
*ed  as  one  of  the  strongest  considerations  in  the  law,  either 
to  raise  a  use,  or  to  found  a  contract,  gift,  or  grant,  (s)  But 
such  promises  are  certainly  within  the  Statute  of  Frauds,  as 
made  "  in  consideration  of  marriage,"  [i)  although  a  promise 
to  marry  may  not  be.  They  must  therefore  be  in  writing,  in 
England,  and  in  those  of  our  States  which  have  enacted  this 
clause  of  the  Statute  of  Frauds.  And  the  celebration  of  the 
marriage  is  not  such  part  performance  of  the  contract  as 
takes  it  out  of  the  statute,  {u)  But  the  Court  of  Chancery 
has  frequently  interfered,  where  there  was  a  writing,  and 
in  some  instances  where  there  was  none,  to  compel  parties  to 
carry  into  effect  the  intentions  of  such  a  contract,  or  the  ex- 
pectations justly  raised  by  the  conduct  and   declarations  of 

(17)  Irving  V.  Greenwood,  1  C.  &  'P.  would  take  this  distinction ;  where  the 

350.  property  was  the  wife's,  and  had  come 

(r)  Vaughan  v    Aldridge,  Forrest's  to  the   husband  by  a  marriage  made 

Kep.  42.  after  a  promise  to  secure  it  to  her,  a 

(s)  Holder  v.  Dickeson,  1  Freem.  96  ;  settlement  in  fulfilment  of  the  promise 

Smith  r.  Stafford,  Hob.  216;  Waters  v.  would   be   sustained   against  creditors, 

Howard,  8  Gill,  262.  because  they  lose  nothing  by  it ;   but 

{t)  Randall  v.  Morgan,  12  Ves.  67.  not  so  if  the  property  had  been  origi- 

In  this  case  it  is  doubted  whether  a  set-  nally  the  husband's, 
tlement  after  marriage,  founded  upon  a        {u)    Duodas  v.  Dutens,   1   Ves.  Jr. 

parol  agreement  before  marriage,  could  196;  Montacute  v.  Maxwell,  1  P.  Wms. 

be    sustained   against  creditors.      The  618,   1    Strange,  236.     In  Simmons  v. 

same   question  occurred  in  Dundas  r.  Simmons,  6   Hare,  352,  it  is  said  that 

Dutens,  1  Ves.  Jr.  196,  and  Lord  Thur-  although  a  parol  agreement  by  the  hus- 

low   seemed   to   think   such   settlement  band,  made  before  marriage,  that  the 

might  be  valid.     He  says  to  counsel :  wife  should  possess  certain  chattels  for 

"  I  should  be  glad  to  hear  you  support  her  own  use,  is  not  binding  upon  him, 

it,  (that  is,  his  objection  to  such  settle-  yet  if  the  parties  voluntarily  place  the 

ment,)  though  it  is  mere  matter  of  cu-  property  under  the  dominion  of  trus- 

riosity,   if    the  first  point  be    against  tees  as  part  of  the  property  under  trust, 

you.""    This  question  does  not  seem  to  the  agreement  may  then  be  made  ef- 

be  distinctly  settled.    Perhaps  the  courts  fectuai. 

[574] 


CH.  XI.]  MARRIAGE.  *  555 

relatives  and  friends,  (v)  But  a  mere  representation  con- 
cerning the  property  or  prospects  of  a  party  about  to  be  mar- 
ried, if  made  in  good  faith,  will  not  bind  a  party  to  make  it 
good,  even  in  equity,  although  the  representation  be  untrue  in 
fact,  (lu)  Letters  from  parents,  or  persons  standing  in  loco 
pai'entis,  promising  provisions,  if  sufficiently  specific  and  ex- 
plicit, have  been  held  to  satisfy  the  requirements  of  the  sta- 
tute, (x) 

*Contracts  have  been  frequently  declared  void,  on  the 
ground  that  they  were  in  fraud  of  settlements  and  marriage 
portions,  or  promises  thereof.  As  where  a  private  bargain 
was  made  with  the  husband,  or  even  with  husband  and  wife, 
to  pay  back  a  part  of  the  wife's  portion ;  (y)  or  to  return  a 
part  of  an  annuity  or  other  provision  apparently  given  to  a 
son  to  enable  him  to  marry ;  (z)  or  to  restore  money  given 
to  impart  to  one  an  appearance  of  wealth 'by  which  he  may 
induce  another  to  marry  him.  (a)  A  note  given  fraudulently 
to  induce  a  marriage  contract  is  good  against  the  maker,  (b) 
So  creditors  who  conceal  or  deny  debts  due  to  them  from 
a  man  about  to  be  married,  that  their  debtor  may  get  the 
consent  of  the  woman  or  her  parents  to  the  marriage,  are 
bound  by  such  representations  as  effectually  as  by  a  re- 
lease, (c)     Any  private  agreement  impairing  or  avoiding  an 

(v)  Hunsden  v.   Cheyney,  2  Vera.  {>/)  Turton  v.  Benson,  1   P.  Wms. 

150;    Beverley  v.  Beverley,    2   Vera.  49G,  2  Vera.  764;  Pitcaim  y.  Ogbourne, 

131.  2  Ves.  Sen.  375.     See  also  Jackson  v. 

(w)  Merewether  v.  Shaw,  2  Cox,  124.  Duchaire,  3  T.  R.  552. 

(x)  Bird  V.  Blosse,  2  Vent.  301  ;  Sea-  (z)  Peyton  v.  Bladwell,  1  Vera.  240 ; 

good  ?;.  Meale,  Prec.  Ch.  561;  Cookes  Palmer  v.  Neavc,  11  Ves.  165;   Mori- 

r.  Mascall,   2   Vera.   200  ;    Moore   v.  gone  v.  Arbuthnot,  8  Bro.  P.  C.  247. 

Hart,  1   Vera.  110;  Wankford  v.  Fo-  /   v    c^^**          c     **     i    n         o^t 

therley,  2   Vera.   322.    -In    this    case  t^^^    ^"^^^  .^-    Scott    I    Cox    357  ; 

£3,000  were  decreed  to  be  paid  on  the  l^TT l'.  ^^'Tt/    i^"""'  ^^^^  Jt'I 

.  '      ^1     r     1  i...  1  i    u        I  this  last  case  Liord  1 /lurlow  sa,ys :  —  "It 

strength  of  a  letter  proved  to  have  been  -,  „  „  i„    :„   „    „      e  e      ^  J^' 

_  •.*  1  v  /^u  e  ^1  y  \  J-  i.-  IS  a  rule,  m  cases  of  frauds  on  mar- 
wntten  by  his  (the  fathers)  direction,      .„„„  .,  '    „,.i,„     .    »,     ,      ,      \  , 

.  ■i.         ^        11  ij      •  nagc,  that  although  the  husband  be  a 

wherein    it  was   said    he  would    give  .  \„  „     i    <•    ''i       ..  u-    ■  .       7  • 

j-o  r^f^r^       *•         -i-i    1--     1       1  ^  J  party  to  such  iraud,  yet  his  interest  is 

£3,000  portion  with  his  daughter ;  and  ^  »  .„  i  „  „«•    ,   i     •  -^     -^  •    •    '-^'""'r  " 

♦u„*  I.  c.  1         •        ^     i.1  not  to  be  aiiected,  since  it  is  impossible 

that  he   was   afterwards   privy  to   the  .    ^„i  „  u-^  i-  1 1     •  ^  '.i         r 

^„    •  •,  1  i      '      "^     ^1  to  make  him  liable  in  respect  thereof, 

marriage,  and  seemed  to  approve  there-       .,,      ..       ,  .      ^,       -r   i'^"-"  " '^'^"  > 

n.e     «-^   .,!.«    A    ra-„         'p  o   ii  without  involving  the  wife  and  children, 

ot.     bee   also   Aylifte   v.    Iracv,  2   P.  i  *i  „  r      -i  u         .1      i      -^ 

Wrvo  i--     i->       I         ir-        ..  n  -ir  and  the  tamily  upon  whom  the  deceit 

Wms.  6o;  Douglas  y.  Vincent,  2  Vera.  ,    „  ,    „  .•    j      a        1       r<  1 

oni      T„  *u-  1  -J  has  been  practised.     See  also  Gale  v. 

201.     In  this  case  an  uncle  promised  -r .    ■■     ,  ^         .-^ 

by  letter  to  give  his  niece  £1,000,  "  but  ^^"^^^^  ^  ^  ^^^-  *'^- 

in  the  same  letter  he  dissuaded  her  from        (^)  Montefiori  v.  Montefiori,  1  Wra. 

marrying  the  plaintift';"  and  the  court  Bl.  363. 

refused  to  decree  payment  of  the  sum,        (c)  Redman  v.  Redman,  1  Vera.  348; 

but  left  the  plaintilF  to  his  action  at  law.  Neville  v.  Wilkinson,  1  Bro.  C  C.  543. 

[575] 


556*  THE   LAW   OF   CONTRACTS.  [bOOK   III. 

open  and  public  treaty  of  marriage,  is  considered  fraudulent ; 
and  it  is  sometimes  laid  down  as  a  principle,  that  whoever 
acts  fraudulently  in  such  cases  shall  not  only  not  gain,  but 
shall  lose  by  his  fraud. 


SECTION  III. 
CONTRACTS  IN  RESTRAINT   OF  MARRIAGE. 

These  contracts  are  wholly  void.  It  has  been  held  that  a 
promise  to  a  woman  to  marry  no  one  but  her  was  such  a  con- 
*tract.  (d)  So  a  bond  by  a  widow  not  to  marry  again,  (e) 
So  a  wagering  contract  that  the  party  would  not  marry 
within  six  years.  (/)  But  a  promise  by  one  with  whom  a 
woman  had  cohabited,  to  pay  her  an  annuity  for  life  pro- 
vided she  remained  single,  was  held  to  be  good,  (g-) 

There  are  certain  contracts  spoken  of  in  English  books  as 
"  marriage  brocage  or  brokerage  contracts."  They  are  con- 
tracts for  payment  of  money,  or  some  other  compensation, 
for  the  procuring  a  marriage ;  and  they  are  held  to  be  void, 
both  in  law  and  equity,  as  against  policy  and  morality. 
Courts  in  England  are  very  hostile  to  any  contract  of  this 
nature  or  effect;  particularly  if  made  with  a  guardian,  or 
with  a  servant,  or  one  to  whose  selfish  and  injurious  influ- 
ence the  party  would  be  much  exposed.  Such  a  contract 
is  set  aside,  without  reference  to  the  propriety  or  expediency 
of  the  marriage.  (A) 

(J)  Lowe  V.  Peers,  4  Burr.  2225.  was  not  made  until   six  months  after 

(e)  Baker  v.  White,  2  Vern.  215.  the  marriage  ;  as  appears  from  the  case 

(/)  Hartley  D.  Rice,  10  East,  22,  cited  as  reported  in  1   Bro.  P.  C.  57.     See 

in  note  (.r,)  p.  548.    In  Sterling  v.  Sin-  also  Hall  v.  Potter,  3  Lev.  411,  Show. 

nickson,  2  South.  756,  a  bond  to  pay  P.   C.   76.     This  too  arose   from  Mr. 

$1,000,   if  the   obligee    (the   plaintiff,)  Thynn's   desire  to   marry  Lady  Ogle. 

were  not  married  within  six  months,  He  gave  an  obligation  to  Mrs.  Potter 

was  declared  void.  for  £1,000,  conditioned   to   pay   £500 

{g)  Gibson  v.  Dickie,  3  M.  &  S.  463.  within  three    months   after  he   should 

See  also  Lloyd  v.  Lloyd,  10  E.  L.  &  E.  marry  Lady  Ogle.     A  bill  was  brought 

139.  by  Thynn's  executors  for  relief  against 

(h)  Stribblehill  v.  Brett,  2  Vern.  445.  the  bond.    Their  ground  was,  that  Mrs. 

In  this  case  a  lease  was  set  aside,  "  upon  Potter  only  advised  Thynn  to  apply  to 

surmise  that  the  consideration  of  the  Brett,  so  that  she  did  nothing  to  earn 

lease  was  Col.  Brett's  (the  lessee's)  un-  the  money,  and  next  that  such  con- 

dertaking  to  procure  a  marriage  to  be  tracts  -were  of  dangerous  consequence. 

had  between   Mr.  Thynn  (the  lessor)  The  defence  was,  that  the  "marriage 

and  the  Lady  Ogle,"  although  the  lease  was  suitable  in  respect  of  their  estates," 

[576] 


CH.   XI.]  MAKRIAGE.  *557 


SECTION  IV. 


CONTRACTS   OF  MARRIAGE. 


The  relation  of  marriage  is  founded  upon  the  will  of  God, 
and  the  nature  of  man  ;  and  it  is  the  foundation  of  all  moral 
improvement,  and  all  true  happiness.  No  legal  topic  sur- 
*passes  it  in  importance  ;  and  some  of  the  questions  which  it 
suggests  are  of  great  difficulty. 

The  first  which  presents  itself  is,  what  constitutes  a  legal 
marriage.  It  is  impossible  that  any  question  should  be  more 
important  to  any  one  in  itself,  or  in  the  consequences  which  it 
involves,  than  whether  he  or  she  is  or  is  not  a  husband,  or  a 
wife  ;  and  yet  some  uncertainty  may  often  rest  upon  it,  not 
merely  from  the  peculiar  facts  of  individual  cases,  but  from 
a  want  of  precision  and  certainty  in  the  principles  or  rules 
which  decide  this  question. 

The  Roman  civil  law  declared,  that  "  sufficU  nudus  con- 
sensi  s  ad  constituenda  sponsalia.^^  (i)  Chancellor  Kent  quotes 
another  passage  from  the  Digest,  "  Nuptias,  non  concubitus, 
sed  consensus  facit"  and  adds:  —  "This  is  the  language 
equally  of  the  common  and  canon  law,  and  of  common  rea- 
son." (j)  If  this  means  that  the  consent  of  the  parties  is  the 
essence  of  marriage,  and  that  the  ceremonies  of  celebration 
are  but  its  form,  this  is  undoubtedly  true.  But  it  is  said 
consent  suffices  for  marriage,  makes  marriage ;  and  if  this  be 
literally  taken,  we  suppose  it  open  to  doubt  whether  this  be 
law  in  any  of  the  countries  of  Christendom,  at  this  moment. 
Even  the  Roman  civil  law  says,  ^^justas  autem  nuptias  inter 
se  cives  Romani  contrahunt,  qui  secundum  precepta  legum 
coeunV^  (k)  In  Scotland  it  is,  or  was,  the  law,  that  consent, 
manifested  by  declaration  before  witnesses,  and  followed  by 
consuhimation,  constituted  a  legal  marriage.  (/)  Hence  the 
practice  of  resorting,  by  those  in  England  who  wished  to 
escape  the  marriage  laws  of  that  country,  to  Gretna  Green, 

and,  "  that  Thynn's  estate  was  £10,000  (i)  Dig.  Lib.  23,  tit.  1,  §  4. 

a  year,  and  ho  a  gentleman  of  a  great  (./)  2  Kent's  Com.  87. 

family,  though  not  of  the  nobility."    But  (l-j  Inst.  Lib.  1,  tit.  10. 

the  bond  was  declared  void  by  the  lords  (.')  It  is  not  quite  certain  that  cohabit- 

reversing  the  decree  in  Chanceiy.     See  ation  was  necessary  by  the  Scotch  law 

also  Smith  v.  Brunning,  2  Vern.  392.  to  constitute  a  legal   marriage,  if  the 

VOL.  I.                                        49  [577] 


558' 


THE  XAW   OF   CONTRACTS. 


[book  III. 


which  was  the  village  in  Scotland  most  accessible  from  Eng- 
land. But  even  this  was  ^^  consensus  et  concubitus ;^'  not 
"  consensus  non  conciibUus."  In  England  the  common  law 
provided  no  special  form  or  mode,  but  the  whole  matter  was 
under  the  ecclesiastical  or  canon  law  ;  but  the  statutes 
of  England  are,  and  for  some  time  have  been,  precise  *and 
stringent,  if  not,  as  some  there  have  thought,  severe.  In  all 
Christian  countries  of  which  we  have  any  knowledge,  and  as 
we  suppose  in  all  civilized  countries,  certain  ceremonies  are 
prescribed  for  the  celebration  of  marriage,  either  by  express 
law,  or  by  a  usage  which  has  the  force  of  law.  And  the 
question  is,  whether  a  mere  consent  of  the  parties,  even  with 
mutual  promises,  but  without  any  use  of  or  reference  to  any 
of  these  ceremonies,  is  sufficient  to  constitute  a  valid  mar- 
riage. In  the  case  of  Milford  v.  Worcester,  (m)  the  Supreme 
Court  of  Massachusetts  gives  a  somewhat  elaborate  state- 
ment of  the  reasons  which  led  them  to  the  conclusion  that  a 
marriage  is  not  valid  if  it  do  not  conform  to  the  statutory 
requirements.     In   New  Hampshire,  in  the  case  of  Clark  v. 


contract  were  in  verba  de  prcesentl.  For 
a  very  full  and  learned  discussion  of  the 
law  of  Scotland  concerning  marriage, 
see  Dalrymple  v.  Dalrymple,  2  Hag- 
gard's Consist.  Rep.  54,  and  the  appen- 
dix to  that  volume. 

(m)  7  Mass.  48.  In  this  case  Par- 
sons, C.  J.,  said:  —  " Mamage  being 
essential  to  the  peace  and  harmony,  and 
to  the  virtues  and  improvements  of 
civil  society,  it  has  been,  in  all  well  re- 
gulated governments,  among  the  first 
attentions  of  the  civil  magistrate  to  re- 
gulate marriages,  by  defining  the  cha- 
racters and  relations  of  parties  who 
may  marry,  so  as  to  prevent  a  conflict 
of  duties,  and  to  preserve  the  purity  of 
families;  by  describing  the  solemnities 
by  which  the  contract  shall  be  executed, 
so  as  to  guard  against  fraud,  surprise, 
and  seduction ;  by  annexing  civil  rights 
to  the  parties  and  their  issue,  to  encou- 
raf^e  marriage,  and  to  discountenance 
wanton  and  lascivious  cohabitation, 
which,  if  not  checked,  is  followed  by 
prostration  of  morals,  and  a  dissolution 
of  manners ;  and  by  declaring  the  causes 
and  the  judicature  for  rescinding  the 
contract,  when  the  conduct  of  either 
party  and  the  interest  of  the  State  au- 
thorize a  dissolution.  A  maiTiage  con- 
[578] 


tracted  by  parties  authorized  by  law  to 
contract,  and  solemnized  in  the  manner 
prescribed  by  law,  is  a  lawful  marriage ; 
and  to  no  other  marriage  are  incident 
the  rights  and  privileges  secured  to  hus- 
band and  wife,  and  to  the  issue  of  the 

marriage Where  the 

laws  of  any  State  have  prescribed  no 
regulations  for  the  celebration  of  mar- 
riages, a  mutual  engagement  to  inter- 
marry, by  parties  competent  to  make 
such  a  contract,  would  in  a  moral  view 
be  a  good  marriage,  and  would  impugn 
no  law  of  the  State.  But  when  civil 
government  has  established  regulations 
for  the  due  celebration  of  marriages,  it 
is  the  duty,  as  well  as  the  interest,  of 
all  the  citizens,  to  conform  to  such  re- 
gulations. A  deviation  from  them  may 
tend  to  introduce  fraud  and  surprise  in 
the  contract ;  or  by  a  celebration  with- 
out witnesses  the  vilest  seductions  may 
be  practised  under  the  pretext  of  matri- 
mony. "When,  therefore,  the  statute 
enacts  that  no  person  but  a  justice  or  a 
minister  shall  solemnize  a  marriage, 
and  that  only  in  certain  cases,  the  par- 
ties are  themselves  prohibited  from  so- 
lemnizing their  own  marriages  by  any 
form  of  engagement,  or  in  the  presence 
of  any  witnesses  whatever.    If  this  be 


CH.    XI.] 


MARRIAGE. 


559 


Clark,  (n)  the  court  say: — "But  inmost  governments  the 
contract  is  held  to  be  valid  and  binding,  notwithstanding  it 
is  entered  into  with  no  rites  or  ceremonies."  But  they  had 
said  before,  "  it  is  a  contract  and  relation  —  to  be  regula- 
ted—  not  by  the  mere  will  of  the  parties,  but  by  the  general 
provisions  of  the  municipal  law."  But  how  can  a  contract 
be  said  to  be  regulated,  not  by  the  mere  will  of  the  parties, 
but* by  the  provisions  of  law,  if  the  mere  will  of  the  parties 
controls  these  provisions,  and  they  have  no  force  or  effect 
whatever,  if  only  the  parties  chose  to  disregard  them. 

That  evidence  of  marriage,  from  cohabitation,  acknow- 
ledgment by  the  parties,  reception  by  the  family,  connection 
as  man  and  wife,  and  general  reputation,  is  receivable  in 
nearly  all  civil  cases,  has  been  distinctly  held,  (o)  This, 
however,  proceeds  upon  the  ground  of  the  actual  probability 
of  a  regular  marriage,  where  such  evidence  exists.  In  New 
York  this  presumption  has  been  pushed  very  far.  (p) 


not  a  reasonable  inference,  fruitless  are 
all  the  precautions  of  the  legislature. 

A  marriage,  merely 

the  effect  of  a  mutual  engagement  be- 
tween the  parties,  or  solemnized  by  any 
one  not  a  justice  of  the  peace  or  an  or- 
dained minister,  is  not  a  legal  marriage, 
entitled  to  the  incidents  of  a  marriage 
duly  solemnized."  In  Fenton  v.  Eeed, 
4  Johns.  54,  the  court  say: — '-No 
formal  solemnization  of  marriage  is 
requisite.  A  contract  of  marriage  made 
per  verba  de  prcesmti  amounts  to  an 
actual  marriage,  and  is  as  valid  as  if 
made  in  facie  ecclesicB."  The  opinion 
was  probably  given  by  Mr.  Chief  Jus- 
tice Ivent,  who  uses  the  same  language 
in  the  first  edition  of  his  commentaries. 
But  the  remark  is  somewhat  obiter,  and 
perhaps  did  not  receive  the  particular 
attention  of  the  court ;  the  case  being 
decided  on  the  ground  that  the  circum- 
stances of  the  case  warranted  an  infer- 
ence of  actual  marriage. 

(n)  10  New  Hamp.  383. 

(o)  Read  r.  Passer,  1  Esp.  213, 
Pcake"s  Cas.  231  :  Hervey  v.  Hervev,  2 
Wm.  El.  877  ;  Leader  v.  Barry,  1  Esp. 
353.  In  INIorris  v.  Miller,  4  Burr.  2058, 
Lord  Mnnaju'ld  held  that  proof  of  mar- 
riage from  cohabitation,  name  and  re- 
ception of  the  woman  by  everybody  as 
the  man's  wife,  was  certainly  receivable 
in  all  cases  except  two,  one  a  prosecu- 


tion for  bigamy,  and  the  other  an  action 
for  criminal  conversation  ;  and  this  last, 
he  says,  is  a  sort  of  criminal  action. 

(p)  Fenton  v.  Reed,  4  Johns.  52. 
The  only  point  in  controversy  in  this 
case  was  whether  the  defendant  was  the 
widow  of  one  William  Keed.  It  ap- 
peared that  in  the  year  1785  she  was 
the  lawful  wife  of  one  John  Guest. 
Sometime  in  that  year  Guest  left  the 
State  for  foreign  parts,  and  continued 
absent  until  sometime  in  tlie  year  1792, 
and  it  was  reported  and  generally  be- 
lieved that  he  had  died  in  foreign  parts. 
During  the  year  1792  the  defendant 
was  married  to  Reed,  and  afterwards  in 
the  same  year  Guest  returned  to  the 
State  of  New  York,  and  continued  to 
reside  therein  until  June,  1800,  when 
he  died.  He  did  not  object  to  the 
connection  between  the  defendant  and 
Reed,  and  said  that  he  had  no  claim 
upon  her,  and  never  interfered  to  dis- 
turb the  harmony  between  them.  After 
the  death  of  Guest,  the  defendant  con- 
tinued to  cohabit  with  Reed  until  his 
death  in  September,  1806,  and  sustain- 
ed a  good  reputation  in  society  ;  but  no 
solemnization  of  marriage  was  proved 
to  have  taken  place  between  the  defend- 
ant and  Reed  subsequent  to  tlic  death 
of  Guest.  Upon  these  facts  the  court 
held  that  the  marriage  of  the  defendant 
with  William  Reed,  during  the  lifetime 
[579] 


560  THE  LAW  OF   CONTRACTS.'  [BOOK  III. 

Mr.  Chancellor  Kent,  in  the  fifth  and  subsequent  editions 
of  his  Commentaries,  says :  —  "If  the  contract  be  made  per 
verba  de  praesenti,  and  remains  without  cohabitation,  or  if 
made  per  verba  de  future,  and  be  followed  by  consummation, 
it  amounts  to  a  valid  marriage,  in  the  absence  of  all  civil  re- 
gulations to  the  contrary,  (q)  In  his  four  first  editions  he 
omitted  the  words  which  we  have  italicized.  But  these 
words  seem  to  us  extremely  material.  They  make  the  state- 
ment accurate  and  certain.  They  leave,  however,  the  real 
question  undecided  for  all  practical  purposes ;  for  in  what 
civilized  land  is  there  an  absence  of  all  civil  regulations  to 
the  contrary  ?  In  the  case  of  Jewell's  Lessee  v.  Jewell,  which 
came  before  the  Supreme  Court  of  the  United  States,  (r)  on 
error  from  the  Circuit  Court  for  the  District  of  South  Carolina, 
this  precise  question  came  up.  The  court  below  cited  the 
above  passage  from  Kent,  but  from  an  early  edition,  and 
therefore  without  the  very  material  clause  we  italicize,  and 
instructed  the  jury  that  this  was  law.  Exceptions  were 
taken,  and  the  case  was  carried  to  the  Supreme  Court  of  the 
United  States,  where  Taney,  C.  J.,  in  giving  the  opinion  of 
the  court,  refers  [to  this  instruction,  and  says : — "  Upon  the 
point  thus  decided,  this  court  is  equally  divided ;  and  no 
opinion  can  therefore  be  given."  (s)     In  consequence  of  this 

of  John  Guest,  was  null  and  void  ;  that  as  their  legitimate  child.  The  court 
she  was  then  the  lawful  wife  of  Guest,  held  that  these  facts  were  sufficient  to 
and  continued  so  until  his  death  in  warrant  a  jury  in  finding  that  a  mar- 
1800  ;  but  that  the  facts  and  circnm-  riage  in  fact  existed  previous  to  A.'s 
stances  of  the  case  were  sufficient  to  hirth,  notwithstanding  the  ceremony 
authorize  a  jury  to  infer  that  an  actual  which  took  place  afterwards.  Bronson, 
marriage  took  place  between  the  de-  J.,  dissented.  See  also  Piers  v.  Piers, 
fendant  and  Eeed  subsequent  to  the  2  House  of  Lords  Cases,  331  ;  Clayton 
death  of  Guest.  See  also  Starr  v.  Peck,  v.  Wardell,  4  Corns.  230. 
1  Hill,  270.  In  this  case,  on  a  question  (</)  2  Kent's  Com.  87. 
as  to  the  legitimacy  of  A.,  it  appeared  (r)  1  How.  219,  234.  In  this  case, 
that  her  parents  had  been  intimate  in  and  in  Londonderry  v.  Chester,  2  New 
the  way  of  courtship  for  nearly  a  year  Hamp.  268,  all  the  leading  authorities 
before  her  birth  —  that  they  intended  to  upon  this  difficult  question  are  cited, 
be  married  —  that  the  father  being  a  (s)  In  the  case  of  The  Queen  v.  Mil- 
seafaring  man,  left  on  a  voyage,  and  lis,  10  C.  &  Pin.  534,  on  appeal  from 
was  accidentally  detained  longer  than  Ireland  to  the  House  of  Lords,  the 
he  expected  —  that  A.  was  bom  a  few  lords  were  equally  divided  on  the  same 
days  before  his  return — that  •svithin  a  question;  Lord  BrougJiam,  Lord  Den- 
week  or  so  afterwards  they  were  pub-  man,  and  Lord  Campbell,  being  in  favor 
licly  married  by  a  clergyman  —  that  of  the  validity  of  the  marriage  at  com- 
they  subsequently  cohabited  as  husband  mon  law,  and  Lord  Lyndktirst,  Lord 
and  wife  for  many  years,  and  until  their  Cottenham,  and  Lord  Abinger,  against  it. 
separation  by  death,  always  treating  A.  The  question  had  been  referred  by  the 

[580] 


CH.   XI.]  MARRIAGE.  561 

« 

decision,  Mr.  Kent  added  in  his  next  and  subsequent  editions 
the  words  we  have  italicized  in  the  extract  from  his  Com- 
mentaries ;  and  also,  from  a  cautiousness  that  was  certainly 
carried  to  an  extreme,  stated  in  a  note  that  "  the  Supreme 
Court  were  equally  divided  in  respect  to  the  above  paragraph 
or  proposition  in  the  text ; "  but  the  precise  proposition  in 
the  text,  that  is,  with  the  added  clause,  was  never  before  the 
court;  nor  do  we  think  that  any  court  would  have  been 
divided  upon  it.  Their  division  was  upon  the  question 
whether  such  a  contract  of  marriage  be  valid  without  refer- 
ence to  the  presence  or  absence  of  municipal  regulations,  and 
this  question  must  therefore  be  considered  as  an  open  one. 
In  Clayton  v.  Wardell,  4  Comst.  230,  it  is  declared  to  be  the 
rule  of  the  common  law,  that  "  a  valid  marriage  may  exist 
without  any  formal  solemnization  ; "  but  the  marriage  in  that 
case  was  denied  for  other  reasons;  and  we  know  of  no 
case  in  which  a  mere  agreement  to  marry,  with  no  formality 
and  no  compliance  with  any  law  or  usage  regulating  mar- 
riage, is  actually  permitted  to  give  both  parties  and  their 
children  the  rights,  and  lay  them  under  the  obligations  and 
liabilities,  civil  and  criminal,  of  a  legal  marriage,  [t)  It 
may  be  remarked  that  the  practice  of  the  courts  in  this 
country,  in  one  respect,  seems  directly  opposed  to  the  rule 
that  "  if  the  contract  be  made  per  verba  de  futuro,  and  be 
followed  by  consummation,  it  amounts  to  a  valid  marriage, 
and  is  equally  binding  as  if  made  in  facie  ecclesice."  (u)    For 

lords  to  the  judges,  and  Tindall,  C.  J.,  (t)  It  would  be  impossible  to  discuss 

in  belialf   of   the   judges,  gave    their  this  subject  fully,  either  in  the  text  or 

unanimous  opinion  against  the  validity  in   the    notes,   without   occupying   too 

of  the  marriage,  and  Jield,  that  by  the  large  a  space.     I  would  refer,  therefore, 

law  of  England,  as   it  existed  at  the  to  a  very  elaborate,  and,  as  I  think,  ac- 

timc  of  the  marriage  act,  a  contract  of  curate,  investigation  of  the  authorities 

marriage  per  verba  de  prccsenti  was  in-  and  the  law,  in  Jacop's  Addenda  to  Ko- 

dissoluble   between   the    parties   them-  per  on  Husband  and  Wife,  vol.  2,  pp. 

selves,  and  afforded  to  either  of  them,  445  to  475.    I  cannot  but  think  that  he 

by   application   to    the   spiritual  court,  places  upon  strong  grounds  his  conclu- 

the  power  of  compelling  the  solcmniza-  sion  that  a  contract  of  marriage  in  vcr- 

tion   of  an  actual   marriage ;  but  that  ba  de  2)rccsenti,  without  ceremou}'  or  cele- 

such  contract  never  constituted   a  full  bration  of  any  kind,  does  not  constitute 

and  complete  marriage  in  itself,  unless  a  valid  marriage  at  common  law. 

made  in  the  presence  and  with  the  in-  (u)  In  Queen  v.  Millis,  10  C.  &  F. 

tervention  of  a  minister  in  holy  orders.  534,  it  seemed  to  be  the  universal  opi- 

The   civil   contract  and    the   religious  nion  that  marriage,  per  verba  de  fuluro 

ceremony  were  both  necessary  to  a  per-  cum  copula,  and  marriage  pec  verba  de 

feet  marriage  by  the  common  law.  prcesenti.  have  absolutely  the  same  va- 

49  *  [581] 


562*  THE   LAW   OF  CONTRACTS.  [BOOK   III. 

a  very  large  proportion  of  the  cases  in  which  an  action  is 
brought  for  breach  of  promise  of  marriage  come  within  this 
definition.  The  man  promised  marriage,  the  woman  accept- 
ed and  returned  the  promise,  and  thereupon  yielded  to  his 
wishes.  It  is  a  question,  which  we  have  already  considered, 
how  far  the  seduction  may  be  given  in  evidence,  in  this  ac- 
*  tion  to  swell  the  damages ;  but  in  some  way  or  other,  if 
the  fact  exists  it  is  usually  brought  out.  Then  it  becomes  a 
case  of  marriage,  falling  within  that  rule.  But  such  a  de- 
fence was  never  made  by  the  party,  nor  interposed  by  the 
court.  It  is  true  that  the  man  would  not  be  likely  to  make 
this  defence,  for  that  would  be  to  acknowledge  himself  the 
husband  of  the  plaintiif.  But  if,  in  such  an  action,  it  should 
appear  that  the  parties  had  celebrated  a  regular  marriage, 
in  facie  ecelesics,  and  were  unquestionably  husband  and  wife, 
certainly  the  court  would  not  wait  for  the  defendant  to  avail 
himself  of  that  fact,  but  as  soon  as  it  was  clearly  before  them 
would  stop  the  case.  For  if  they  were  once  married,  no 
agreement  of  both  parties,  and  no  waiver  of  both  or  either, 
would  annul  the  marriage.  And  the  circumstance  that  this 
objection  is  never  made,  where  it  appears  that  there  was  a 
mutual  promise  and  subsequent  cohabitation,  would  go  far 
to  show  that  the  courts  of  this  country  do  not  regard  such  a 
contract,  although  followed  by  consummation,  as  equivalent 
to  a  marriage  in  which  the  formalities  sanctioned  by  law  or 
usage  are  observed.  It  might  be  added  that  such  a  provision 
as  that  contained  in  the  Revised  Statutes  of  Massachusetts,  (v) 
(which  has  been  elsewhere  enacted,)  would  seem  to  be  wholly 
unnecessary,  if  words  of  present  contract,  with  consumma- 
tion, were  all  that  is  needed  to  render  marriage  valid. 

In  a  late  case  in  Massachusetts  {vv)  the  court  say  :  "  But 

lidity,  force,  and  effect,  whatever  that  justice  or  minister,  or  on  account  of  any 
may  be.  Pratt,  J.,  in  Clayton  v.  War-  omission  or  informality  in  the  manner 
dell,  denies  this.  of  entering  the  intention  of  maiTiage,  or 
(w)  Ch.  75,  sect.  24.  The  provision  in  the  publication  of  the  banns ;  pro- 
contained  in  that  section  is  as  follows :  vided,  that  the  marriage  be  in  other 
No  marriage  solemnized  before  any  per-  respects  lawful,  and  be  consummated 
son  professing  to  be  a  justice  of  the  with  a  full  belief,  on  the  part  of  the 
peace,  or  a  minister  of  the  gospel,  shall  pei'sons  so  married,  or  of  either  of  them, 
be  deemed  or  adjudged  to  be  void,  nor  that  they  have  been  lawfully  joined  in 
shall  the  validity  thereof  be  in  any  way  marriage." 

affected,  oa  account  of  any  want  of  iu-        ,     s  t,    .  tt  ,  ^^         ,-.« 

risdiction  or  authority  iu  such  supposed        (^'^•)  I^^'^ton  v.  Hervey,  I  Gray,  119. 

[582] 


CH.   XI.]  MARRIAGE.  *  563 

in  the  absence  of  any  provision  declaring  marriage  not  cele- 
brated in  a  prescribed  manner  or  between  parties  of  a  certain 
age,  absolutely  void,  it  is  held  that  all  marriages  regularly 
made  according  to  the  common  law  are  valid  and  binding, 
although  had  iffviolation  of  the  specific  regulations  imposed 
by  statute."  This  language  differs  somewhat  from  any  used 
elsewhere,  but  it  leaves  the  question  undetermined,  because 
it  does  not  decide  how  marriages  are  to  be  "  regularly  made 
according  to  the  common  law  ;"  and  what  is  more  important, 
the  words  of  the  court  must  be  considered  in  reference  to  the 
case  before  them,  which  was  whether  a  marriage  otherwise 
valid,  could  be  avoided  by  the  fact  that  the  wife  being  but 
thirteen  years  of  age  was  married  without  the  consent  of  her 
parents,  which  marriage  the  magistrate  was  on  that  account 
prohibited  from  solemnizing,  under  a  penalty.  The  court 
determined  that  in  Massachusetts  the  common  law  rule 
which  fixes  twelve  as  the  age  of  consent  of  females  and  four- 
teen of  males,  prevails. 

But  a  precise  compliance  with  all  the  requirements  of  law 
has  not  been  deemed  necessary ;  and  in  some  important  pro- 
visions it  has  been  held  that  a  disregard  of  them  was  punish- 
able, but  did  not  vitiate  the  marriage ;  as  the  want  of  con- 
sent of  parents  or  guardians  where  one  party  is  a  minor,  or 
an  omission  of  the  publication  of  banns.  The  essential 
thing  seems  to  be  the  declaration  of  the  consent,  by  both 
parties,  before  a  person  authorized  to  receive  such  declara- 
tion, by  law.  [w) 

*  Consent  is  the  essence  of  this  contract,  as  of  all  others. 
It  cannot  be  valid,  therefore,  if  made  by  those  who  had  not 
sufficient  minds  to  consent  ;  as  by  idiots  or  insane  per- 
sons, (x)  Such  marriages  are,  doubtless,  void  at  common 
law,  and  by  the  statutes  of  many  States.     It  is  usual,  how- 

(w)  Parton  v.  Hcrvey,  1  Gray,  119;  him,"  and  authorities  are  cited  to  that  ef- 

Milford  V.  Worcester,  7  "Mass.  48 ;  Ligo-  feet.     And  in  Shafher  v.  The  State,  20 

nia  y.  Buxton,  2  Grccnl.  102;  London-  Ohio,  l,itwas held thatraarriagesbyboys 

derry  r.  Chester,  2  N.  II.  268.  under  18  and  girls  under  14  years  of 

(x)  Elliott  V.  Gurr,  2  Phillimorc,  19;  age  arc  invalid  unless  confirmed  by  co- 
Browning  V.  Reanc,  Id.  69 ;  True  v.  habitation  subsequent  to  those  ages,  and 
Ranney,  1  Foster,  52.  But  it  is  said  in  do  not  [subject  the  parties  marrying  to 
Vin.  Abr.  Marriage,  (D.)  pi.  3,  "If  an  the  punishment  of  bigamy  upon  remar- 
idiot  contracts  marriage  it  shall  bind  rying. 

[583] 


564*  THE   LAW   OP   CONTRACTS.  [BOOK   ni. 

ever,  and  far  better,  that  the  marriage  should  be  declared 
void  by  a  competent  tribunal,  after  a  judicial  ascertainment 
of  the  facts.  Courts  having  full  equity  powers  may  make 
this  inquiry  and  decree,  (y)  But  some  of^e  States  have 
provided  for  doing  this  by  common  law  couto. 

From  the  same  necessity  of  consent,  a  marriage  procured 
by  force  or  fraud  is  also  void ;  but  the  force  and  fraud  must 
be  certain  and  extreme,  (z)  So  if  another  husband  or  wife 
of  either  of  the  parties  be  living,  (a)  Bigamy,  or,  as  it  should 
be  called,  polygamy,  is  an  indictable  offence  in  all  the 
States ;  but  exceptions  are  made  in  cases  of  long  absence, 
with  belief  of  the  death  of  the  party,  &c.  But  these  excep- 
tions to  the  criminality  of  the  act  leave  the  question  as  to 
the  validity  of  the  second  marriage  as  they  were  before,  (b) 
So  if  the  parties  are  within  the  prohibited  degrees  of  kin- 
dred, (c)  The  age  of  consent  to  marriage,  by  the  rules  of 
the  common  law,  as  stated  by  Coke,  {d)  is  fourteen  for  the 
male  and  twelve  for  the  female ;  these  rules  are  borrowed, 
perhaps,  from  the  *  Roman  law,  with  which  they  agree ;  al- 
though the  Roman  law  appears  to  have  provided  also  that 
parties  were  marriageable  whenever  they  had  arrived  at 
puberty.  If  the  marriage  take  place  when  one  is  of  suffi- 
cient age  —  as  the  husband  of  fifteen  —  and  the  other  within 
the  age  of  consent,  —  as  the  wife  of  ten,  —  when  the  wife 
reaches  twelve,  the  husband  may  disagree  and  annul  the  mar- 

(y)  Wightman  v.  Wightman,  4  Johns,  chusetts,  is  not  incestuous  by  the  law  of 

Ch.  343.    In  True  v.  Ranney,  1  Foster,  nature,  and  was  not  void  by  the  law  of 

52,  the  court  assumed  the  power  of  de-  England  before  the  statute  of  6  "Wm.  4, 

daring  a  marriage  null  for  imbecility  c.  54,  though  it  was  voidable  by  process 

of  the  woman,  on  a  petition  of  her  next  in  the  ecclesiastical  court.    In  Bonham 

friend.     So  also  in  a  case  of  insanity  of  v.  Badgley,  2  Oilman,  622.  it  was  de- 

the  wife  which  was  kept  concealed  from  cided  that  a  marriage  between  a  man 

her  husband  by  her  friends.    Keyes  v.  and  the  daughter  of  his  sister,  although 

Keyes,  2  Fost.  554.  within  the  Levitical  degrees,  was  not 

(z)  Dalrymple  v.  Dalrymple,  2  Hag.  void,   but  only  voidable ;    that  for   all 

Consist.  Rep.  104  ;  Sullivan  v.  Sullivan,  civil  purposes  such  marriages  are  valid 

Id.  246.  until  sentence  of  nullity  or  separation ; 

(a)  Riddlesden  v.  Wogan,  Cro,  Eliz.  and  that  this  sentence  can  be  passed 

858.;  Pride  r.  Earl  of  Bath,  1  Salk.  120;  only  during  the  lives  of  both  parties. 

Martin's  Heirs  v.  Martin,  22  Ala.  86.  The  children,  therefore,  of  such  mar- 

(6)  So  at  least  say  the  court  in  Fen-  riage,  after  the  death  of  either  party, 

ton  V.  Eeed,  4  Johns.  53.  no  sentence  of  nullity  having  been  passed 

(c)  Sutton  V.  Warren,  10  Met.  451.  before  such  death,  are  legitimate ;  and 

In  this  case  it  was  held  that  the  inter-  if  the  husband  die,  the  wife  may  have 

marriage  of  a  man  and  his  jnother's  her  dower, 

sister,  though  void  by  the  law  of  Massa-  (d)  Co.  Litt.  78,  b. 

[584] 


CH.  XI.]  MARRIAGE.  *  565 

riage.  Such,  at  least,  is  the  rule  as  laid  down  by  Coke,  (e)  He 
adds  that  they  cannot  disagree  before  the  age  of  consent ;  but 
this  may  be  doubted  ;  and  the  Revised  Statutes  of  Massachu- 
setts seem  to  assume  that  they  may  disagree  within  nonage. 

The  consent  of  parents  or  guardians  to  the  marriage  of 
minors  is  required  by  the  E-oman  law,  the  marriage  acts  of 
England,  and  by  the  statutes  of  some  of  our  States ;  but 
not  by  common  law,  nor  in  England  until  the  stat.  of  26 
Geo.  2,  ch.  33.  The  English  statute  makes  the  marriage  of 
minors,  without  such  consent,  absolutely  void.  In  this 
country  that  would  depend  upon  the  statutes  of  the  several 
States.  Generally,  if  not  universally,  the  marriage  would  be 
held  valid,  although  the  person  celebrating  it  might  be  punish- 
able. (/) 

It  has  been  held  in  England  that  a  marriage,  not  lawfully 
celebrated,  by  reason  of  the  fraud  of  one  of  the  parties,  shall 
yet  be  held  valid  in  favor  of  the  innocent  party.  As  in  case 
of  a  misnomer  of  the  wife  by  the  husband's  fraud,  (g-)  So 
where  the  husband  falsely  imposed  upon  the  wife  a  forged 
or  unauthorized  license,  and  a  pretended  clergyman,  (h)  In 
*  the  statutes  of  some  of  the  States  there  are  provisions  to 
the  same  effect. 

The  operation  of  the  lex  loci  upon  marriage,  and  the  rights 
of  the  married  parties,  has  given  rise  to  some  questions, 
which  we  shall  consider  in  our  second  volume,  when  we  treat 
of  the  Law  of  Place. 

(e)  Co.  Litt.  79,  b.  Heffcr  v.  Heffer,  Tree    v.  Quin,  and 

(/)  It  has  been  so  decided  in  Massa-  Mayhew  v.  Mayhew,   decided    by  the 

chusetts.    Parton  v.  Hervey,   1   Gray,  same  judge,  are  also  cited  in  the  same 

119.  note.    In  these  there  was  an  error  of 

(g)  King  v.  Wroxton,  4  B.  &  Ad.  the  name,  but  the  marriages  were  not 

640.    It  is  held  in  this  case  that  a  mar-  annulled.     From  all   the   cases   taken 

riage  is  not  void  because  the  banns  together,  it  might  perhaps  be  inferred 

were  published  under  false  names,  un-  that  a  mere  error  in  the  name  would 

less  both  parties  were  privy  to  such  not  make  a  marriage  void,  (especially 

false  publication.      See  also    King  v.  if  a  name  acquired  by  reputation  were 

Billingshurst,  3  M.  &  S.  250.    In  a  note  used,)  imless  there  were  circumstances 

to  this  case  are  given  at  length  Frank-  of  frand,  or  other  objection.     But  in 

land  V.  Nicholson,  Pougett  v.  Tompkins,  Cope  v.  Burt,   1   Hagg.   Consist.  438, 

and  Mather  v.  Ney,  decided  by  Sir  W.  Sir  W.   Scott  seems   to  insist  that  it 

Scott,  in  all  of  which  the  banns  were  is  essentially  necessary  that  the  banns 

erroneous  in  the  name  of  one  of  the  par-  should  be  published  in  the  true  names, 
ties,  and  the  mamagc  was  declared  void        (h)  Dormer  v.  Williams,  1   Curteis, 

ab  initio.     But  in   the   two  first  cases  870;  Lane  v.  Goodwin,  4  Q.  B.  361; 

there    were    circumstances    of    fraud.  Clowes  v.  Clowes,  3  Curtics,  185. 

[558] 


566  THE  LAW  OF   CONTRACTS.  [BOOK  III. 

SECTION  V. 
DIVORCE. 

Neither  the  common  law  nor  the  equity  courts  of  England 
decree  divorce.  Almost  all  questions  of  marriage  are  there 
decided  by  the  spiritual  courts,  having  been  originally  under 
the  cognizance  and  jurisdiction  of  the  bishops.  The  spirit- 
ual courts  sometimes  decree  that  a  marriage  was  void  ab  ini- 
tio, and  sometimes  grant  a  divorce  from  bed  and  board,  but 
never  a  divorce  from  the  bond  of  marriage.  This  complete 
divorce  occurs  in  England  only  when  parliament,  by  a  pri- 
vate act  made  for  the  case,  annuls  a  marriage.  But  it  is  not 
so  in  this  country.  Very  early  in  the  settlement  of  New 
Eno-land,  as  we  learn  from  Mather's  Magnalia,  the  question 
was  put  to  the  clergy  whether  adultery  was  a  sufficient  cause 
for  divorce  ;  and  they  answered  that  it  was.  The  courts  of 
law  thereafter  decreed  divorce  in  such  cases,  and  this  law  and 
practice  became  nearly  universal  through  this  country.  For 
many  years,  however,  a  divorce  a  vinculo  was  granted  for  no 
other  cause  than  adultery,  the  law  being  made  to  conform  to 
what  was  regarded  as  the  positive  requirement  of  Scripture. 
At  lent^th,  however,  the  severity  of  this  rule  was  modified. 
Divorce  a  vinculo  was  permitted  for  other  causes;  as  desertion, 
cruelty,  sentence  to  long  imprisonment,  and  the  like.  The 
law  and  practice  in  this  respect  differs  in  the  different  States, 
being  precisely  alike  in  no  two  of  them.  And  in  some,  the 
facility  of  obtaining  a  divorce  has  certainly  been  carried  quite 
far  enough. 

A  divorce  a  vinculo  annuls  the  marriage  altogether ;  and  it 
restores  the  parties  to  all  the  rights  of  unmarried  persons, 
and  relieves  them  from  all  the  liabilities  which  grew  out  of 
the  marriage,  except  so  far  as  may  be  provided  by  statute,  or 
made  a  part  of  the  decree  of  divorce  by  the  courts.  Thus,  it 
is  a  provision  of  some  of  our  State  statutes  on  this  subject, 
that  the  guilty  party  shall  not  marry  again.  And  the  court 
generally  have  power  to  decree  terms  of  separation,  as  to 
[586] 


CH.  XI.] 


MARRIAGE. 


567 


alimony,  care  and  possession  of  children,  and  the  like.  In 
practice,  proper  precautions  are  used  to  prevent  a  divorce 
from  being  obtained  by  collusion ;  it  not  being  gi-anted 
merely  upon  the  consent  or  on  the  default  of  the  party  charged, 
but  only  on  proof  of  the  cause  alleged.  (») 

The  courts  may  also  decree  a  divorce  a  mensa  et  thoro ; 
and  this  kind  of  divorce  was  once  the  most  common.  But 
most  of  the  causes  which  formerly  only  sufficed  for  a  divorce 
from  bed  and  board,  are  now  very  generally  made  sufficient 
for  a  divorce  from  the  bond  of  marriage.  In  general,  a  wo- 
man divorced  from  the  bed  and  board  of  her  husband  ac- 
quires the  rights,  as  to  property,  business,  and  contracts,  of 
an  unmarried  woman.  And  her  husband  is  freed  from  his 
general  obligation  to  maintain  her,  the  courts  having  power, 
which  they  usually  exercise,  of  decreeing  such  maintenance 
from  the  husband  as  his  means,  and  the  character  and  cir- 
cumstances of  the  case  render  proper,  (o) 


(n)  Indeed,  so  careful  are  the  courts 
to  guard  against  any  collusion  between 
the  parties,  one  of  whom  has  applied  for 
a  divorce,  that  although  the  respondent 
be  defaulted,  yet  the  alleged  cause  of 
divorce  must  be  as  distinctly  and  satis- 
factorily proved  as  in  other  instances. 
So  liivcwise  must  the  fact  of  marriage. 
Williams  v.  Williams,  3  Greenl.  135. 
And  a  divorce  a  vinculo,  for  the  adul- 
tery of  the  husband,  has  been  frequently 
refused  where  the  only  proof  was  the 
defendant's  admission  of  the  fact.  Hol- 
land i'.  Holland,  2  Mass.  154;  Baxter 
V.  Baxter,  1  Mass.  346.  And  this  is 
done  to  avoid  the  possibility  of  collu- 
sion. But  if  it  distinctly  appear  tliat 
the  confessions  were  given  under  cir- 
cumstances showing  there  was  no  col- 
lusion, the  defendant's  confessions  are 
held  sufficient.  Billings  v.  Billings,  11 
Pick.  461  ;  Vance  v.  Vance,  8  Greenl. 
132  ;  Owen  v.  Owen,  4  Hagg.  Eccl.  11. 
261.  So  the  record  of  the  conviction  of 
the  party  upon  an  indictment  for  the 
same  offence  is  admissible  after  default, 
and  is  sufficient  proof  of  the  marriage 
and  the  crime.  Randall  v.  Randall,  4 
Greenl.  326 ;  Anderson  v.  Anderson, 
Id.  100.  Unless  such  conviction  was 
had  upon  the  testimony  of  the  wife  as 


it  might  have  been  where  the  charge  in 
the  indictment  was  an  assault  and  bat- 
tery upon  her.  Woodruff  v.  Woodruff, 
2  Fairf.  475. 

(o)  Dean  V.  Richmond,  5  Pick.  461, 
where  it  was  held  that  a  wife  divorced 
a  mensa  et  thoro  may  be  sued,  or  sue,  as 
a  feme  sole.  Parker,  C.  J.,  in  deliver- 
ing the  opinion  of  the  court,  after  quo- 
ting from  Kent's  Commentaries,  vol.  2, 
p.  136,)  as  "a  recently  published  book, 
which  I  trust,  from  the  eminence  of  its 
author,  and  the  merits  of  the  work,  will 
soon  become  of  common  reference  in 
our  courts,"  says :  —  "So  far  as  this 
opinion  relates  to  the  case  of  divorce, 
we  fully  concur  with  him,  and  are  satis- 
fied that,  although  the  marriage  is  not 
to  all  purposes  dissolved  by  a  divorce 
a  mensa  et  thoro,  it  is  so  far  suspended 
that  the  wife  may  maintain  her  rights 
by  suit,  whether  for  injuries  done  to  her 
person  or  property,  or  in  regard  to  con- 
tracts express  or  implied  arising  after 
the  divorce ;  and  that  she  shall  not  be 
obliged  to  join  her  husband  in  such 
suit ;  and  to  the  same  extent  she  is  lia- 
ble to  be  sued  alone,  she  being  to  all 
legal  intents  a  feme  sole  in  regard  to 
subjects  of  this  nature.  Such,  however, 
is  not  the  law  of  England,  it  having 

[587] 


568  THE  LAW  OF  CONTRACTS.  [BOOK  III. 

been  recently  decided  that  coverture  is  party,  will  sufficiently  account  for  the 

a  good  plea,  notwithstanding  a  divorce  seeming  rigor  of  their  common  law  on 

a  mensa  et  ihoro.    Lewis  v.  Lee,  3  B.  &  this  subject.    If  the  husband  is  not  lia- 

C.  291.    But  the  diiference  in  the  ad-  ble  for  the  debts  of  the  wife,  after  a  di- 

ministration  of  their  law  of  divorce  and  vorce   a  mensa,    the  chief  reason  for 

ours,  and  the  power  of  the   Court  of  denying  her  the  right  to  sue  alone  fails." 

Chancery  there  to  protect  the  suffering  Sec  also  Pierce  u.  Burnham,  4  Met.  303. 

[588] 


CH.   XII.]  BAILMENT.  569 


CHAPTER   XII. 


BAILMENT. 


The  Law  of  Bailment  has  received  in  modern  times  a 
more  systematic  arrangement  than  formerly,  and  a  more  pro- 
found and  accurate  investigation  into  its  principles.  But  it 
was  always,  though  not  under  the  same  name,  a  branch  of 
the  common  law,  and  some  of  its  principles  are  as  ancient  as 
any  part  of  that  law.  Sir  William  Jones  speaks  of  it  as  re- 
ferred to  in  the  books  of  Moses,  and  as  quite  fully  developed 
among  the  Greeks.  But  in  fact,  much  law  on  the  topics 
which  are  now  considered  under  the  head  of  Bailment,  must 
exist  in  all  nations  who  make  any  approach  to  civilization. 
For  there  must  always  be  something  of  borrowing,  lending, 
hiring,  and  of  keeping  chattels,  carrying  or  working  upon 
them,  for  another  ;  and  all  this  is  embraced  within  Bailment. 
The  word  is  from  the  Norman  French  bailie?;  to  deliver. 
"Whatever  is  delivered  by  the  owner  to  another  person,  in 
any  of  the  ways  or  for  any  of  the  purposes  above  mentioned, 
is  bailed  to  him  ;  and  the  law  which  determines  the  rights 
and  duties  of  the  parties,  in  relation  to  the  property  and  to 
each  other,  is  the  law  of  Bailments. 

Sir  William  Jones,  in  1781,  published  his  brief  essay  on 
the  law  of  Bailments.  This  work  first  gave  to  the  subject 
systematic  form.  It  was  at  that  time  eminently  useful,  and 
has  always  been  celebrated.  As  a  literary  and  philosophical 
production,  manifesting  much  learning  in  the  Roman  civil 
law,  it  has  great  merit;  but  as  a  law-book  for  present  use,  it 
possesses  now  less  value.  In  the  2  Anne,  Lord  Holl,  in  the 
case  of  Coggs  v.  Bernard,  (p)  laid  the  foundation  of  this  sys- 

(p)  2  Ld.  Raym.  909.     This  celebra-  case  that  eminent  judge,  Sir  John  Holt, 

ted  case  is  referred  to  in  the  great  ma-  may  be  said  to  have  laid  the  fonnda- 

jority  of  subsequent  cases  which  rchitc  tion  of  the  Law  of  Baihnent  for  Eng- 

to  the  responsibility  of  a  bailee.    In  this  land,     lie  borrows   most,  perhaps  all, 

VOL.    I.  50  [589] 


570  THE   LAW   OF   CONTRACTS.  [BOOK  III. 

tern  of  law,  building  it,  however,  on  principles  deducible  from 
or  harmonizing  with  existing  English  jurisprudence,  although 
he  used  an  arrangement  and  nomenclature  borrowed  from 
the  civil  law. 

A  bailee  is  always  responsible  for  the  property  delivered  to 
him  ;  but  the  degree  and  measure  of  this  responsibility  vary 
from  one  extreme  to  another.  He  is  bound  to  take  care  of 
the  property ;  but  the  question  always  occurs,  what  care  ? 
It  is  obviously  impossible  to  measure  the  requirement  of  care 
with  exact  precision.  But,  for  their  assistance  in  doing  this, 
courts  have  established  three  kinds  or  degrees  of  care,  as 
standards.  There  is,  perhaps,  no  better  definition  of  these, 
than  that  given  by  Sir  William  Jones.  First,  slight  care, 
which  is  that  degree  of  care  which  every  man  of  common 
sense,  though  very  absent  and  inattentive,  applies  to  his  own 
affairs ;  secondly,  ordinary  care,  which  is  that  degree  of  care 
which  every  person  of  common  and  ordinary  pradence  takes 
of  his  own  concerns  ;  thirdly,  great  care,  which  is  the  degree 
of  care  that  a  man  remarkably  exact  and  thoughtful  gives  to 
the  securing  of  his  own  property.  It  is  obvious  that  the  de- 
gree of  care  required  measures  the  degree  of  negligence  which 
makes  the  bailee  responsible  for  loss  of  or  injury  to  the  thing 
bailed.  There  are,  therefore,  three  degrees  of  negligence. 
The  absence  of  slight  care  constitutes  gross  negligence  ;  the 
absence  of  ordinary  care  constitutes  ordinary  negligence  ;  the 
absence  of  great  care  constitutes  slight  negligence.  The 
general  purpose  of  the  Law  of  Bailment  is  to  ascertain  when- 
ever loss  of  or  injury  to  a  thing  bailed  occurs,  to  what  degree 
of  care  the  bailee  was  bound,  and  of  what  degree  of  negli- 
gence he  has  been  guilty. 

For  this  purpose  bailees  are  sometimes  distributed  into 
three  general  classes,  corresponding  with  the  three  degrees  of 
care  and  negligence  already  referred  to.  The  first  of  these  is, 
where  the  bailment  is  for  the  benefit  of  the  bailor  alone.     In 


of   his  principles  from   the  civil  law.  stating  them  with  great  accuracy  of  de- 

And  ho  gave  at  once  a  proof  of  the  wis-  finition,  and  with  the  modifications  re- 

dom  of  that  law,  and  of  his  own  saga-  quired  to  adapt  them  to  the  common 

city  in  seizing  those  of  its   principles  law.     So  that  they  have  passed  through 

•which  had  been  adopted  by  or  were  ap-  all  subsequent  adjudications  with  but 

plicable  to   the  common  law,  and   in  little  essential  change. 

[590] 


CH.  XII.]  BAILMENT.  *  571 

this  class  but  slight  care  is  required  of  the  bailee,  and  he  is 
responsible  only  for  gross  negligence.  The  second  is,  where 
*the  bailment  is  for  the  benefit  of  the  bailee  alone.  In  this 
class  the  geatest  care  is  required  of  the  bailee,  and  he  is  re- 
sponsible for  slight  negligence.  The  third  is,  where  the  bail- 
ment is  for  the  benefit  both  of  bailor  and  bailee.  In  this 
class,  ordinary  care  is  required  of  the  bailee,  and  he  is  respon- 
sible for  ordinary  negligence.  We  shall  also  see,  presently, 
that  there  are  bailees  of  whom  the  utmost  possible  care  is 
required,  and  who  are  responsible  for  the  slightest  possible 
negligence,  and  others  who  are  responsible  when  guilty  of  no 
negligence  whatever. 

Courts  and  writers  have  sometimes  spoken  of  gross  neg- 
ligence as  the  same  thing  as  fraud  ;  but  this  is  inaccurate,  (q) 
There  are  bailees  who  should  not  be  held  responsible  but  for 
the  grossest  negligence,  and  it  is  often  difficult  to  distinguish 
between  such  cases  and  those  where  there  is  reasonable  sus- 
picion of  fraud ;  for  such  negligence  generally  justifies  such 
suspicion.  But  that  the  law  makes  this  distinction  is  cer- 
tain. 

There  have  been  many  different  classifications  of  the  kinds 
of  bailments ;  (r)  but  we  prefer  and  shall  use  that  of  Sir 

(q)  In  the  case  In  re  Hall  &  Hinds,  gross  negligence  is  looked  upon  as  evi- 
2  M.  &.  Gr.  852,  Tindal,  C.  J.,  says : —  dence  of  fraud,  he  adopts  a  rule  of  the 
"Lata  culpa  or  crassa  negligentia,  both  civil  law;  he  does  not  mean  that  this 
by  the  civil  law  and  our  own,  approxi-  evidence  is  conclusive;  or,  that  if  it  be 
mates  to,  and  in  many  instances  cannot  rebutted,  and  the  negligence  cleared 
be  distinguished  from  dolus  malus  or  from  all  stain  of  actual  fraud,  it  will  not 
misconduct."  There  may  be  instances  remain  gross  negligence.  In  other 
in  which  these  cannot  be  discriminated  words,  gross  negligence  is  not  fraud  by 
in  fact,  but  they  are  entirely  distinct  in  inference  of  law,  but  may  go  to  a  jury 
law.  In  Wilson  v.  Y.  &  M.  Rail  Road  as  evidence  of  fraud. 
Co.  11  Gill  &  Johns.  5S,  79,  the  court  (r)  There  are  two  classifications  of 
say:  —  "We  do  not  think  that  gross  the  various  kinds  of  bailments  which 
negligence  would  in  construction  of  law  have  become  very  celebrated  in  the  Eng- 
amount  to  fraud,  but  was  only  evidence  lish  and  American  law  —  that  of  Lord 
to  be  left  to  the  jury,  from  which  they  Holt,  in  the  case  of  Coggs  v.  Bernard, 
might  infer  fraud,  or  the  want  of  bona  supra,  and  that  of  Sir  William  Jones,  in 
Jidesr  In  Goodman  v.  Harvey,  4  Ad.  his  essay  on  bailments.  We  shall  give 
&  El.  876, Lord  Z)e?iman  says:  —  "Gross  them  both  in  their  authors'  own  Ian- 
negligence  may  be  evidence  of  mala  guage.  Lord  Holt's  is  as  follows:  — 
fides,  but  it  is  not  the  same  thing."  "  There  arc,"  says  he,  "  six  sorts  of 
This  is  quoted  with  approbation  in  bailments.  The  first  sort  of  baihncnt 
Jones  V.  Smith,  1  Hare,  71,  and  Vice-  is,  a  bare  naked  bailment  of  goods,  de- 
Chancellor  Wigram  adds:  —  "The  doc-  livercd  by  one  man  to  anotlicr  to  keep 
trincs  of  law  and  equity  upon  this  point  for  the  use  of  the  bailor;  and  this  I  call 
ought  to  he  concurrent."  When  Lord  a  depositum,  and  it  is  that  sort  of  bail- 
Ilolt,  in  Coggs  V.  Bernard,  says  that  ment  which  is  mentioned  in  Southcotc's 

[591] 


572 


THE  LAW   OF  CONTRACTS. 


[book  III. 


William  Jones,  which  varies  somewhat  from  Lord  HoWs. 
And  we  shall  speak  successively  of 

First,  Depositum,  or  deposit  without  compensation  or  re- 
ward. 

Second,  MandAtum,  or  gratuitous  commission,  wherein 
the  mandatary  agrees  to  do  something  with  or  about  the 
thing  bailed. 

Third,  Commodatum,  or  loan,  where  the  thing  bailed  is 
lent  for  use,  without  pay,  and  is  to  be  itself  returned. 

Fourth,  PiGNUs,  or  pledge,  where  the  thing  bailed  is  secu- 
rity for  debt. 

Fifth,  LocATio,  or  hiring,  for  a  reward  or  compensation. 


SECTION  I. 

DEPOSITUM. 

Where  a  thing  is  placed  with  a  depositary,  to  be  kept  for  a 
time,  and  returned  when  called  for,  the  depositary  to  have  no 


case.  The  second  sort  is,  when  goods 
or  chattels  that  are  useful  are  lent  to  a 
friend  gratis,  to  be  used  by  him ;  and 
this  is  called  commodatum,  because  the 
thing  is  to  be  restored  m  specie.  The 
third  sort  is  when  goods  are  left  with 
the  bailee  to  be  used  by  him  for  hire; 
this  is  called  locatio  et  conductio,  and  the 
lender  is  called  locator,  and  the  borrower 
conductor.  The  fourth  sort  is,  when 
goods  or  chattels  are  delivered  to  ano- 
ther as  a  pawn,  to  be  a  security  to  him 
for  money  borrowed  of  him  by  the 
bailor ;  and  this  is  called  in  Latin  va- 
dium, and  in  English  a  pawn  or  pledge. 
The  fifth  sort  is  when  goods  or  chattels 
are  delivered  to  be  carried,  or  something 
is  to  be  done  about  them,  for  a  reward 
to  be  paid  by  the  person  "who  delivers 
them  to  the  bailee,  who  is  to  do  the 
thing  about  them.  The  sixth  sort  is 
when  there  is  a  delivery  of  goods  or 
chattels  to  somebody,  who  is  to  carry 
them  or  do  sometliing  about  them  (/ra- 
its, without  any  reward  for  such  his  work 
or  carriage."  Upon  this  classification, 
Sir  William  Jones  has  made  the  follow- 
ing observations : — •'  His  division  of  bail- 
ments into  six  sorts  appears,  in  the  first 

[592] 


place,  a  little  inaccurate ;  for,  in  truth, 
his  Jifth  sort  is  no  more  than  a  branch 
of  his  third,  and  he  might,  with  equal 
reason,  have  added  a  seventh,  since  the 
fifth  is  capable  of  another  subdivision. 
I  acknowledge,  therefore,  but  five  spe- 
cies of  bailments,  which  I  shall  now 
enumerate  and  define,  with  all  the  La- 
tin names,  one  or  two  of  which  Lord 
Holt  has  omitted.  1.  Depositum, 
which  is  a  naked  bailment,  without  re- 
ward, of  goods,  to  be  kept  for  the  bailor. 

2.  Ma>'datum,  or  commission,  when  the 
mandatary  undertakes,  without  recom- 
pense, to  do  some  act  about  the  things 
bailed,  or  simply  to  carry  them ;  and 
hence  Sir  Henry  Finch  divides  bailment 
into  two  sorts,  to  keep,  and  to  employ. 

3.  Commodatum,  or /oan /or  jise;  when 
goods  arc  bailed,  without  pay,  to  be  used 
for  a  certain  time  by  the  bailee.  4.  Pig- 
NONi  AccEPTUM,  whcu  a  thing  is  bail- 
ed by  a  debtor  to  his  creditor  in  pledge, 
or  as  a  security  for  the  debt.  5.  Loca- 
TUM,  or  hiring,  which  is  always  for  a 
reward ;  and  this  bailment  is  either, 
1.  Locatio  rci,  by  which  the  hirer  gains 
the  temporary  use  of  the  thing ;  or,  2.  Lo- 
catio operis  fuciendi,  when  work  and  la- 


CH.    XII.] 


BAILMENT. 


573 


compensation,  the  benefit  of  the  transaction  is  wholly  on  the 
side  of  the  bailor,  and  the  bailee  is  liable  only  for  gross  neg- 
ligence, (s)     By  the  Roman  law  he  was  answerable  only  for 


bor,  or  care  and  pains,  are  to  be  perform- 
ed or  bestowed  on  the  thing  delivered ; 
or,  3.  Locatio  operis  mercium  vehendarum, 
when  goods  are  bailed  for  the  purpose 
of  being  carried  from  place  to  place, 
either  to  a  public  carrier,  or  to  a  private 
person."     See  Jones  on  Bail.  35. 

(s)  This  has  been  the  clearly  esta- 
blished law  ever  since  the  case  of  Coggs 
V.  Bernard.  Lord  Coke,  however,  in 
Southcote's  case,  4  Co.  Hep.  83  b,  and 
in  Co.  Litt.  89  a,  laid  down  a  different 
rule.  He  stated  the  law  to  be  that  a 
gratuitous  bailee  must  answer  for  the 
goods  delivered  to  him  at  his  peril,  un- 
less he  has  made  a  special  agreement 
to  take  such  care  of  them  only  as  he 
takes  of  his  own  goods;  "for  to  be 
kept  and  to  be  safely  kept  is  all  one  in 
law."  But  the  profession  seem  never 
to  have  been  satisfied  with  Lord  Coke's 
rule.  For  it  was  denied  to  be  law  in 
33  Car.  2,  by  Pemherton,  C.  J.,  in  the 
case  of  Rex  v.  Hertford,  2  Show.  172; 
and  again  in  13  Will.  3,  by  Holt,  C  J., 
in  the  case  of  Lane  v.  Cotton,  1 2  Mod. 
472,  487  ;  and  finally  it  was  expressly 
overruled  by  the  whole  Court  of  Queen's 
Bench,  in  2  Ann,  in  the  case  of  Coggs 
V.  Bernard.  And  Holt,  C.  J.,  in  the 
latter  case,  said  that  the  rule  stated  in 
the  text  had  always  been  acted  upon  at 
Guildhall,  contrary  to  the  opinion  of 
Lord  Coke,  particularly  during  all  of 
Chief  Justice  Pemberton's  time,  and 
ever  since.  The  whole  matter  of  the 
liability  of  a  depositary  was  much  dis- 
cussed in  the  case  of  Foster  v.  The  Es- 
sex Bank,  17  Mass.  479.  The  facts  in 
that  case  were  that  the  plaintiff's  tes- 
tator had  deposited  at  the  Essex  Bank, 
for  safe  keeping,  a  chest  containing  a 
large  quantity  of  gold.  Sometime  after 
the  deposit  was  made,  the  gold  was 
taken  from  the  chest  and  put  iu  a  cask, 
from  whence  the  greater  part  of  it  was 
fraudulently  and  secretly  taken  by  the 
cashier  and  chief  clerk,  who  appropriated 
it  to  their  own  use,  and  afterwards  ab- 
sconded, having  also  defrauded  the  bank 
of  the  greater  part  of  its  capital.  This 
was  done  without  the  knowledge  of  any 
of  the  directors,  or  members  of  the  cor- 
poration. Tlie  deposit  in  question  was 
kept  in  the  vault,  in  the  same  manner, 
and  with  the  same  care,  as  other  spc- 

50* 


cial  deposits,  and  as  the  s])ecie  of  the 
bank;  and  the  cashier  and  the  clerk 
sustained  fair  reputations,  until  the  time 
of  their  absconding.  The  court  held 
that  the  bank  was  not  liable.  And  Par- 
ker, C.  J.,  said  :  — "  The  dictum  of  Lord 
Coke,  that  the  bare  acceptance  of  goods 
to  keep  implies  a  promise  to  keep  them 
safely,  so  that  the  depositary  will  be  lia- 
ble for  loss  by  stealth  or  accident,  is  en- 
tirely exploded ;  and  Sir  W.  Jones  in- 
sists that  such  a  harsh  principle  cannot 
be  inferred  from  Southcote's  case,  on 
which  Lord  Coke  relied;  the  judgment 
in  that  case,  as  the  modern  civilian 
thinks,  being  founded  upon  the  particu- 
lar state  of  the  pleadings  from  which  it 
might  be  inferred,  either  that  there  was 
a  special  contract  to  keep  safely,  or 
gross  negligence  in  the  depositary.  But 
as  the  judges,  Gawdy  and  Clench,  who 
alone  decided  that  cause,  said  that  the 
plaintiflf  ought  to  recover,  because  it  was 
not  a  special  bailment,  by  which  the  de- 
fendant accepted  to  keep  them  as  his 
own  proper  goods,  and  not  otherwise ; 
the  inference  which  Lord  Coke  drew 
from  the  decision,  that  a  promise  to 
keep  implied  a  promise  to  keep  safely, 
even  at  the  peril  of  thieves,  was  bj'  no 
means  unwarranted.  But  the  decision, 
as  well  as  the  dictum  of  Lord  Coke  in 
his  commentary,  were  fully  and  expli- 
citly overruled  by  all  the  judges  in  the 
case  of  Coggs  v.  Bernard,  and  upon  the 
most  sound  principles.  It  is  so  con- 
sidered in  Hargrave  and  Butler's  note 
to  Co.  Litt.  n.  78,  and  all  tlie  cases 
since  have  adopted  tiie  principle,  that  a 
mere  depositary,  without  any  special  un- 
dertaking, and  without  reward,  is  an- 
swerable for  the  loss  of  the  goods  only 
in  case  of  gross  negligence ;  which,  as 
is  everywhere  observed,  bears  so  near  a 
resemblance  to  fraud,  as  to  be  equiva- 
lent to  it  in  its  effect  upon  contracts. 
Indeed  the  old  doctrine,  as  stated  in 
Southcote's  case,  and  by  Lord  Coke,  has 
been  so  entirely  reversed  by  the  more 
modern  decisions,  that,  instead  of  a  pre- 
sumption arising  from  a  mere  bailment, 
that  the  party  undertook  to  keep  safely, 
and  was  therefore  chargeable,  unless  he 
proved  a  special  agreement  to  keep  only 
as  he  would  his  own  ;  the  bailor,  if  he 
would  recover,  must,  in  addition  to  the 

[593] 


574  THE  LAW   OF   CONTRACTS.  [BOOK  III. 

fraud ;  for  if  the  bailor  thus  deposited  goods  with  a  negli- 
gent person,  he  took  upon  himself  the  risk  of  negligence. 
So  it  seems  to  have  been  held  by  Bracton,  {I)  who  copied 
from  the  Roman  law.     But  by  the  English  and  American 
law,  such  bailee  is,  as  we  have  seen,  liable  for  gross  negli- 
gence, although  he  may  have  been  wholly  innocent  of  any 
fraudulent  intent.     It  is  impossible  to  lay  down  any  rule  or 
principle,  which  will  be  in  all  cases  a  reliable  test  as  to  what 
constitutes  gross  negligence.     The  question  must  always  de- 
pend upon  several  circumstances;  such  as  the  nature  and 
quality  of  the  goods  bailed,  and  the  character  and  customs 
of  the  place  where  the  trust  is  to  be  executed.     What  would 
amount  to  more  than  ordinary  diligence  in   the  case  of  a 
chattel  of  great   bulk  and  little  value,  might  be  very  gross 
neo-ligence  in  the  case  of  a  bag  of  gold  coin,  or  a  parcel  of 
valuable  papers.     Again,  what  would  be  a  sufficient  degree  of 
dilif^ence  in  a  thinly  peopled  country,  might  be  very  culpable 
neo^iaence  in  a  thickly  inhabited  city,  (w)     It  has  been  very 
commonly  stated  by  writers,  and  is  said  in  some  cases,  that  a 
depositary  is  not  liable,  as  for  gross  negligence,  if  he  shows 
that  he  has  taken  as  much  care  of  the  goods  of  the  bailor  as 
he  has  of  his  own ;  but  this  is  not  law,  {iiu)  and  although  it 

mere    bailment    alleged    and    proved,  {uu)  It  seems  very  clear  that  this  is 
prove  a  special  undertaking  to  keep  the  not  a  reliable  test.    For  wc  have  already 
goods  safely  ;  and  even  then,  according  seen  that  a  depositary  is  liable  for  gross 
to  Sir  William  Jones,  the  depositary  is  negligence,  though  a  jury  may  be  satis- 
liable  only  in  case  of  ordinary  neglect,  fied  that  he  is  wholly  innocent  of  any 
which  is  such  as  would  not  be  suffered  fraudulent  intent;  and  it  is  obvious  that 
by  men  of  common  prudence  and  dis-  persons  even  who  usually  exercise  great 
cretion ;  so  that  if  goods  deposited  with  care,  may  in  some  instances  be  guilty 
one  who  engaged  to  keep  them  safely  of  very  gross  negligence  in  the  manage- 
were  stolen,  without  the   fault   of  the  ment  of  their  own  affairs.     It  seems  also 
bailee,  he  having  taken  all  reasonable  to  be  equally  clear  upon  the  modern  au- 
precautions    to   render  them   safe,  the  thorities  that  it  is  no  defence  for  a  de- 
loss  would  fall  upon  the  owner,  and  not  positary  who  has  by  his  negligence  lost 
the  bailee."  the  goods  intrusted  to  him,  that  he  has 
{t)  Lib.  3,  ch.  2,  fol.  99,  b.  been  equally  negligent  in  regard  to  his 
(u)  It  was  held  in  the  case  of  Door-  own  property.     The  first  case  that  we 
man  v.  Jenkins,  2  Ad.  &  El.  256,  after  have  seen  going  to  this  point  is  that  of 
much  consideration,  that  the  question  Rooih  y.  Wilson,  1  B.  &  Aid.  59.     That 
of  o-ross  negligence  was  rather  a  ques-  was  an  action  on  the  case  against  the 
tiou  of  fact  for  the  jury  than  of  law  for  defendant  for  not  repairing  the  fences 
the  court.     But  this  does  not  remove  of  a  close  adjoining  that  of  the  plaintiff, 
all  difficulty  from   the   question,  what  whereby  a  certain  horse  of  the  plaintiff, 
constitutes  gross  negligence.    Tor  it  is  feeding  in  the  plaintiff's  close,  through 
obvious  that  the  jury  should  receive  in-  the   defects   and   insufficiencies   of  the 
struciions  from  the  court  to  guide  them  fences,  fell  into  the  defendant's   close 
in  forming  their  judgment.  and  was  killed.    The  defendant  pleaded 
[594] 


CH.   XII.] 


BAILMENT. 


575 


has  been  thought  that  the  degree  of  care  and  diligence  to 
be  required  of  a  bailee  should  be  regulated  to  some  extent 


the  general  issue,  and  on  the  trial  it  ap- 
peared that  the  horse  was  tlic  property 
of  the  plaintiff's  brother,  who  sent  it  to 
him  on  the  nijjht  before  the  aceidcnt; 
that  the  plaintiff  put  it  into  his  stable 
for  a  short  time,  and  then  turned  it  after 
dark  into  his  close,  where  his  own  cattle 
usually  grazed,  and  thatonthe  following 
morning  the  horse  was  found  dead  in 
the  close  of  the  defendant,  having  fallen 
from  one  to  the  other.     The  jury  having 
found  a  verdict  for  the  plaintiff,  a  rule 
for  setting  aside  the  verdict  and  grant- 
ing a  new  trial  was  obtained,  in  support 
of  which  it  was  contended,  among  other 
things,  that  the  plaintiti'coukl  not  main- 
tain the  action,  because,  having  taken 
as  much  care  of  tjie  horse  as  he  did  of 
his  own  cattle,  he  was  not  liable  over, 
and  so  had  not  sustained  any  damage. 
But  Lord   Elleriloroiujh   said:  —  "The 
plaintiff    certainly    was     a    gratuitous 
bailee,  but,  as  such,  he  owes  it  to  the 
owner  of  the  horse  not  to  put  it  into  a 
dangerous  pasture ;  and  if  he  did  not 
exercise   a    proper   degree  of  care,  he 
would  be  liable  for  any  damage  which 
the  horse  might  sustain.     Perhaps  the 
horse  might  have  been  safe  during  the 
daylight,  but  here  he  turns  it  into  a  pas- 
ture to  which  it  was  unused,  after  dark. 
That  is  a  degree  of  negligence  sufficient 
to     render    him    liable."      The     other 
judges  being  of  the  same  opinion,  the 
rule  was  discharged.     Afterwards  came 
the  case  of  Doorman  v.  Jenkins,  2  Ad. 
&  Ei.  2.56.     The  plaintiff",  in  tluit  case, 
had  intrusted  the  defendant  with  a  sum 
of  money  for  the  purpose  of  paying  and 
taking  up  a  bill  of  exchange.     It  ap- 
peared that  the  defendant,  who  was  the 
proprietor  of  a  coffee-house,  iiad  placed 
the  money  in  his  cash-box,  which  'was 
kept  in  the  tap-room  ;  that  the  tap-room 
had  a  bar  in  it;  tiiat  it  was  open  on 
Sunday,  but  tliat  the  other  parts  of  the 
premises,  which  were  inhabited  by  the 
defendant  and  his  family,  were  not  open 
on   that  day;  and   that   the   cash-box, 
witli  tiie  plaintift''s  money  in  it,  and  also 
a  much  larger  sum  belonging  to  the  de- 
fendant, was  stolen  from  the  tap-room 
on  a  Sunday.     The  defendant's  counsel 
contended  tliat  there  was  no  case  to  go 
to  the  jury,  inasmuch  as  the  defendant, 
being   a   gratuitous    bailee,    was    liable 
ouiy  for  gross  negligence  ;  and  the  loss 


of  his  own  money,  at  the  same  time  with 
the  plaintiff's,  showed  that  the  loss  had 
not  happened  for  want  of  such  care  as 
he  would  take  of  his  own  property.  But 
Lord  Denman,  before  whom  the  case 
was  tried,  refused  to  nonsuit  the  plain- 
tiff, and  told  the  jury  that  it  did  not  fol- 
low from  the  defendant's  having  lost  his 
own  money  at  the  same  time  with 
the  plaintifi'-s  that  he  had  taken  such 
care  of  the  plaintiff's  money  as  a  rea- 
sonable man  would  ordinarily  take  of 
his  own  ;  and  that  the  fact  relied  upon 
was  no  answer  to  the  action,  if  they 
believed  that  the  loss  occurred  from 
gross  negligence.  The  jury  having 
found  a  verdict  for  the  plaintifl',  a  rule 
was  obtained  to  set  it  aside.  The  coun- 
sel for  the  defendant,  one  of  whom  was 
Sir  J.  Scarlett,  in  support  of  the  rule, 
said  that  they  did  not  contend  for  the 
absolute  proposition,  that  a  gratuitous 
bailee,  who  keeps  another  person's  goods 
as  carefully  as  his  own,  cannot  become 
liable  for  the  loss,  or  be  guilty  of  gross 
negligence.  Their  objection  to  the  ver- 
dict was,  that  the  plaintiff,  upon  whom 
the  burden  of  proof  lay,  did  not  make 
out  a  prima  facie  case  of  gross  negli- 
gence. But  the  court  unanimously  dis- 
charged the  rule.  And  Mr.  Justice 
Taunton  said:  —  '-The  defendant  re- 
ceives money  to  be  kept  for  the  plain- 
tiff. What  care  does  he  exercise  f  lie 
puts  it,  together  with  money  of  his  own, 
(which  I  think  perfectly  immaterial,) 
into  the  till  of  a  public  house."  The 
case  of  Tracy  v.  Wood,  3  Mason,  132, 
is  also  a  very  strong  case  to  the  same 
point.  It  was  an  action  of  assumpsit 
for  negligence  in  losing  764^  doubloons, 
intrusted  to  the  defendant  to  be  carried 
from  New  York  to  Boston,  as  a  gratui- 
tous bailee.  The  gold  was  put  u])  in 
two  distinct  bags,  one  within  the  other, 
and  at  the  trial,  upon  the  general  issue, 
it  appeared  that  the  defendant,  a  money 
broker,  brought  tliem  on  board  of  the 
steamboat  bound  from  New  York  to 
Providence;  that  in  the  morning  while 
the  steamboat  lay  at  New  York,  and  a 
short  time  before  sailing,  one  bag  was 
discovered  to  be  lost,  and  the  other  was 
left  by  the  defendant  on  a  table  in  his 
valise  in  the  cabin,  for  a  few  moments 
only,  while  he  went  on  deck  to  send  in- 
formation of  the  supposed  loss  to  the 

[595] 


676 


THE  LAW   OF   CONTRACTS. 


[book  III. 


by   what   may   be    shown  to    be    his   general  character  in 
those  respects,  it  would  seem  to  be  the  better  opinion  that 


plaintiffs,  thei-e  being  then  a  large  num- 
ber of  passengers  on  board,  and  the  loss 
being  publicly  known  among  them.    On 
the  defendant's  return  the  second  bag 
was  also  missing,  and  after  every  search 
no  trace  of  the  manner  of  the  loss  could 
be  ascertained.     The  valise  containing 
both  bags  was  brought  on  board  by  the 
defendant  on  the  preceding  evening,  and 
put  by  him  in  a   berth  in  the  forward 
cabin.     He  left  it  there  all  night,  having 
gone  in  the  evening  to  the  theatre,  and 
on  his  return  having  slept  in  the  middle 
cabin.      The   defendant   had   his   own 
money  to  a  considerable  amount  in  the 
same   valise.    There  was   evidence  to 
show  that  he  made  inquiries  on  board, 
if  the  valise  would  be  safe,  and  that  he 
was  informed  that  if  it  contained  articles 
of  value,  it  had  better  be  put  into  the 
custody  of  the  captain's  clerk  in  the  bar, 
under  lock  and  key.     Story,  J.,  in  sum- 
ming up  to  the  jury,  said :  —  "I  agree  to 
the  law  as  laid  down  at  the  bar,  that  in 
cases  of  bailees  without  reward,  they  are 
liable  only  for  gross  negligence.     Such 
are   depositaries,  or  persons  receiving 
deposits  without  reward  for  their  care ; 
and  mandataries,  or  persons  receiving 
goods  to  carry  from  one  place  to  ano- 
ther without  reward.     The  latter  is  the 
predicament  of  the  defendant.     He  un- 
dertook to  carry  the  gold  in  question 
for  the  plaintiff,  gratuitously,  from  New 
York  to  Providence,  and  he  is  not  re- 
sponsible, unless  he  has  been  guihy  of 
gross  negligence.    Nothing  in  this  case 
arises   out  of   the    personal   character 
of  the  defendant  as  broker.    He  is  not 
shown  to  be  either  more  or  less  negli- 
gent than  brokers  generally  are  ;  nor  if 
he  was,  is  that  fact  brought  home  to  the 
knowledge  of  the  plaintiffs.     They  con- 
fided the  money  to  him,  as  a  broker  of 
ordinary  diligence  and  care,  having  no 
other  knowledge  of  him  ;  and,  therefore, 
no  question   arises   as   to  what  would 
have  been  the  case  if  the  plaintiffs  had 
known  him  to  be  a  very  careless  or  a 
very  attentive  man.     The  language  of 
the  books  as  to  what  constitutes  gross 
negligence,  or  not,  is  sometimes  loose 
and  inaccurate  from  the  general  man- 
ner in  which   propositions   are   stated. 
When  it  is  said  that  gross  negligence  is 
equivalent  to  fraud,  it  is  not  meant  that 

[596] 


it  cannot  exist  without  fraud.  There 
may  be  very  gross  negligence  in  cases 
where  there  is  no  pretence  that  the  par- 
ty has  been  guilty  of  fraud ;  though 
certainly  such  negligence  is  often  pre- 
sumptive of  fraud.  In  determining 
what  is  gross  negligence,  we  must  take 
into  consideration  what  is  the  nature  of 
the  thing  bailed.  If  it  be  of  little  value, 
less  care  is  required  than  if  it  be  of 
great  value.  If  a  bag  of  apples  were 
left  in  a  street  for  a  short  time,  without 
a  person  to  guard  it,  it  would  cer- 
tainly not  be  more  than  ordinary  neg- 
lect. But  if  the  bag  were  of  jewels  or 
gold,  such  conduct  would  be  gross  neg- 
ligence. In  short,  care  and  diligence 
are  to  be  proportional  to  the  value  of 
the  goods,  the  temptation  and  facility 
of  stealing  them,   and  the   danger  of 

losing  them It  appears  to 

me  that  the  true  way  of  consider- 
ing cases  of  this  nature  is,  to  consider 
whether  the  party  has  omitted  that  care 
which  bailees,  without  hire,  or  man- 
dataries of  ordinary  prudence  usually 
take  of  property  of  this  nature.  If  he 
has,  then  it  constitutes  a  case  of  gross 
negligence.  The  question  is  not  whe- 
ther he  has  omitted  that  care,  which 
very  prudent  persons  usually  take 
of  their  own  property,  for  the  omis- 
sion of  that  would  be  but  slight  negli- 
gence ;  nor  whether  he  has  omitted  that 
care  which  prudent  persons  ordinarily 
take  of  their  own  property,  for  that 
would  be  but  ordinary  negligence.  But 
whether  there  be  a  want  of  that  care 
which  men  of  common  sense,  however 
inattentive,  usually  take  or  ought  to  be 
presumed  to  take,  of  their  property,  for 
that  is  gross  negligence.  The  contract 
of  bailees  without  reward  is  not  merely 
for  good  faith,  but  for  such  care  as  per- 
sons of  common  prudence  in  their  situ- 
ation usually  bestow  upon  such  pro- 
perty. If  they  omit  such  care,  it  is 
gross  negligence.  The  present  is  a  case 
of  a  mandatary  of  money.  Such  pro- 
perty is  by  all  persons,  negligent  as 
well  as  prudent,  guarded  with  much 
greater  care  than  common  property. 
The  defendant  is  a  broker,  accustomed 
to  tlie  use  and  transportation  of  money, 
and  it  must  be  presumed  he  is  a  person 
of  ordinary  diligence.    He  kept  his  own 


CH.  xn.] 


BAILMENT. 


577 


the  individual  character  of  the  bailee  is  not  a  legitimate  sub- 
ject of  inquiry,  unless  it  can  be  shown  that  his  character  was 
known  to  the  bailor,  and  that  it  was  the  implied  understand- 
ing of  the  parties  that  the  bailee  should  employ  such  care 
and  skill  as  he  possessed,  (v) 

Sir  William  Jones  thinks  the  depositary  holden  for  less 
than  gross  negligence,  first,  where  he  makes  a  special  bar- 
gain for  special  care,  and  secondly,  where  he  spontaneously 
and  officiously  proposes  to  keep  the  goods  of  another,  (iv) 
But  this  last  has  not  been  determined  by  adjudication. 

The  depositary  is  bound  to  deliver  the  thing  as  it  was,  and 
with  it  all  its  increase  or  profit.  But  if  the  bailor  was  not 
the  rightful  owner,  and  the  depositary  delivers  the  thing  to 
the  rightful  owner  on  demand  from  him,  this  constitutes  a 
good  defence  against  the  bailor ;  (x)  although,  for  his  own 


money  in  the  same  valise ;  and  toolc  no 
better  care  of  it  than  of  the  plaintiff's. 
Still,  if  the  jury  are  of  opinion  that  he 
omitted  to  take  that  reasonable  care  of 
the  gold  which  bailees  without  reward 
in  his  situation  usually  take,  or  which 
he  himself  usually  took  of  such  pro- 
perty, under  such  circumstances,  lie  has 
been  guiltv  of  gross  negligence." 

(())  The  William,  6  Hob.  Adm.  316. 
In  this  case  a  vessel  had  been  captured, 
and  was  afterwards  lost  while  in  the 
hands  of  the  captor.  The  capture  was 
justifiable,  and  the  question  was  whe- 
ther the  captor  had  used  such  diligence 
as  a  captor  is  required  to  use  in  such 
cases.  Sir  W.  Scott,  in  addressing  the 
jury,  said  :  —  ''When  a  capture  is  not 
justifiable,  the  captor  is  answerable  for 
every  damage.  But  in  this  case  the 
original  seizure  has  been  justified  by 
the  condemnation  of  part  of  the  cargo. 
It  is  therefore  to  be  considered  as  a  jus- 
tifiable seizure,  in  which  all  that  the 
law  requires  of  the  captor  is,  that  lie 
should  l)e  held  responsil)le  for  due  dili- 
gence. But  on  questions  of  this  kind 
there  is  one  position  sometimes  ad- 
vanced, which  does  not  meet  with  my 
entire  assent,  namely,  that  captors  are 
answerable  only  for  such  care  as  they 
would  take  of  their  own  property.  This 
I  think  is  not  a  just  criterion  in  such 
case  ;  for  a  man  may,  with  respect  to 


his  own  property,  encounter  risks  from 
views  of  particular  advantage,  or  from 
a  natural  disposition  of  rashness,  which 
would  be  entirely  unjustifiable,  in  re- 
spect to  the  custody  of  the  goods  of 
another  person,  wiiich  have  come  to  his 
hands  by  .in  act  of  force.  Where  pro- 
perty is  confided  to  the  care  of  a  par- 
ticular person,  by  one  who  is,  or  may 
be  supposed  to  be,  acquainted  with  his 
character,  the  care  wliich  he  would  take 
of  his  own  property  might,  indeed,  be 
considered  as  a  reasonable  criterion." 
"  Certainly  it  might,"  says  Mr.  Justice 
Sto7y,  '•  if  sucii  character  was  known, 
and  the  party  under  the  circumstances 
might  be  presumed  to  rely,  not  on  the 
rule  of  law,  but  on  the  care  which  the 
party  was  accustomed  to  take  of  his 
own  property,  in  making  the  deposit. 
But,  unless  he  knew  the  habits  of  the 
bailee,  or  could  be  fairly  presumed  to 
trust  to  such  care  as  tiie  bailee  might 
use  about  his  own  projierty  of  a  like 
nature,  there  is  no  ground  to  say  that 
he  has  waived  his  right  to  demand  rea- 
sonable diligence.  Why  should  not  the 
rule  of  the  civil  law  be  apjdicd  to  such 
a  case  ?  Lat(n  culpce  Jinis  est.  iion  intel- 
lirjerc  id  quod  omncs  intdli'junt."  Story 
on  Bailm.  §  67.  Sec  the  case  of  Wil- 
son V.  Brett,  11  M.  &  W.  ll."}. 

(?«)  Jones  on  Bailments,  48. 

(.r)  King  v.  Kirliards,  6  Whart.  418. 

[597] 


578  • 


THE  LAW  OP   CONTRACTS. 


[book  III. 


security,  he  should,  if  possible,  compel  the  rival  claimants  to 
interplead,  (y) 

If  the  property  belongs  to  two  or  more  bailors,  and  is 
capable  of  partition,  he  may  on  demand  restore  it  by  division 
*among  them.  But  where  it  is  incapable  of  division  the  law 
seems  to  be  deficient.  The  ancient  action  of  detinue,  with 
the  process  of  garnishment,  would  have  settled  the  claim. 
Kent  (z)  thinks  equity  interpleader  adequate,  and  far  better ; 
as  it  certainly  would  be  if  it  could  be  applied  to  the  question  ; 
but  this  Story  (a)  confines  to  cases  of  a  privity  between  the 
parties,  as  where  there  was  a  joint  bailment,  or  joint  con- 
tract.    Upon  the  whole  we  prefer  Kent's  opinion. 

The  duty  of  the  depositary  as  to  the  place  of  delivery  has 
been  much  questioned.  But  it  may  be  considered  as  settled  in 
this  country,  that  a  bailee,  bound  to  deliver  goods  on  de- 
mand, discharges  his  obligation  by  delivering  or  tendering 
them  where  they  are,  or  at  his  own  residence  or  place  of 
business  ;  (b)  but  the  demand  may  be  made  on  him  else- 
where, (c) 

It  is  sometimes  said  that  a  depositary  has  a  special  pro- 
perty in  the  deposit ;  but  this  is  perhaps  inaccurate,  (d)  He 
has  the  right  of  possession,  but  not  the  right  of  property ; 
and  may  therefore  maintain  trover,  for  which  possession  is 
enough ;  (e)  but  not  replevin,  because  that  action  requires 
property  in  the  plaintiff.  (/) 


(y)  Rich  V.  Aldred,  6  Mod.  216. 
{z)  2  Kent's  Com.  567. 

(a)  Story  on  Bailments,  §  112. 

(b)  Scott  V.  Crane,  1  Conn.  255  ; 
Slingerland  v.  Morse,  8  Johns.  474. 

(c)  Higgins  v.  Emmons,  5  Conn.  76. 
Dunlap  V.  Hunting,  2  Dcnio,  643. 

(c?)  Hartop  v.  Hoave,  3  Atk.  44  ;  Sto- 
ry on  Bailments,  ^  93,  et  seg. 

(e)  Sutton  V.  Buck,  2  Taunt.  302  : 
Burton  v.  Hughes,  2  Bing.  173.  See 
also  Webb  v.  Fox,  7  T.  E.  391 ;  Giles 
V.  Grover,  6  Bligh,  277. 

(/)  At  least  such  is  the  law  in  Mas- 
sachusetts. Waterman  v.  Robinson,  5 
Mass.  303.  That  was  an  action  of  re- 
plevin. It  appeared  that  the  goods  re- 
plevied, on  the  20th  of  July,  1801,  bc- 

[598] 


longed  to  one  Lucas,  on  which  day 
a  commission  of  bankruptcy  issued 
against  the  said  Lucas,  and  he  being 
declared  a  bankrupt,  by  a  warrant  from 
the  commissioners,  their  messenger 
seized  the  goods  in  question,  caused 
them  to  be  appraised  and  inventoried, 
and  on  the  28th  day  of  the  same  July 
delivered  them  to  the  plaintift',  taking 
his  obligation  to  redeliver  them  on  de- 
mand. While  the  goods  were  so  in  the 
custody  of  the  plaintiff,  the  defendant, 
as  deputy  sheriff,  attached  them  as  the 
property  of  Lucas.  Upon  these  facts 
the  court  held  that  the  plaintiff  couli 
not  recover.  Parsons,  C.  J.,  said:  — 
"  Upon  these  facts  we  are  to  decide 
whether  the  property  of  the  goods,  so  that 


CH.  xn.] 


BAILMENT. 


579 


One  cannot  be  made  a  depositary  against  his  will,  {g') 
He  must  consent ;  but  the  consent  may  be  implied  or  in- 
ferred. A  pledgee,  holding  a  pledge  over  after  payment  of  the 
debt,  is  a  depositary.  One  finding  property  need  not  take 
charge  of  it ;  if  he  chooses  to  do  so  he  becomes  a  depositary, 


ho  might  lawfully  replevy  them,  was 
in  the  plaintiff.  Trover  may  be  main- 
tained by  him  who  has  the  possession  ; 
but  replevin  cannot  be  maintained  but 
by  him  who  has  the  property,  either 
general  or  special.  Admitting  the  com- 
mission, and  the  proceedings  under  it, 
to  be  regular,  what  property  had  the 
plaintiff  in  the  goods  1  The  general 
property  was  in  the  commissioners  un- 
til the  assignment,  and  then  in  the  as- 
signee. The  messenger,  if  any  person, 
had  the  special  property,  and  not  the 
plaintiff,  who  had  no  interest  in  the 
goods,  but  merely  had  the  care  of  them 
for  safe  keeping.  If  his  possession  was 
violated,  he  might  maintain  trespass  or 
trover,  but  he  had  no  special  proi)erty, 
by  which  he  could  maintain  replevin  ; 
in  which  the  question  is  not  of  posses- 
sion, but  of  property,  although  posses- 
sion may  be  prima  facie  evidence  of 
property.  On  this  ground  we  arc  of 
opinion  that  the  plaintiff  cannot  main- 
tain this  action,  he  not  proving  that 
cither  the  general  or  special  property 
was  in  himself."  So  in  the  case  of 
Templeman  v.  Case,  10  Mod.  24,  it  is 
said  that  a  possessoi-i/  right  is  sufficient 
to  maintain  an  action  of  trespass  or  case, 
though  not  a  replevin.  In  New  York, 
on  the  other  liand,  it  is  held  that  reple- 
vin will  lie  in  favor  of  a  depositary. 
See  the  case  of  Miller  v.  Adsit,  16 
Wend.  335.  And  the  court  seem  to 
have  entertained  a  similar  opinion  in 
21  H.  7,  14  b,  pi.  23.  That  case  was  as 
follows: — "In  replevin.  The  defend- 
ant said  that  the  property,  &c.,  was  in  a 
stranger.  The  plaintiff  said  that  the 
stranger  delivered  them  to  him  to  be  re- 
delivered, and  before  any  redelivery  the 
defendant  took  them.  Marow  said  that 
he  would  demur  upon  that  plea.  For 
he  said  it  was  adjudged  in  a  book,  that 
if  one  has  beasts  for  a  term  of  years,  or 
to  manure  his  land,  there  he  shall  have 
replevin.  And  the  reason  is,  he  has  a 
good  pi-opertij  for  the  time  against  the  les- 
sor, and  shall  have  an  action  aqainst  him 
if  he  retakes  them.  But  where  he  cannot 
have  an  action  against  the  lessor,  it 


seems  that  he  shall  not  have  replevin. 
And  here  there  is  only  a  delivery  to  re- 
deliver to  the  bailor,  so  that  he  has  not 
any  property.  For  if  one  takes  them 
out  of  the  possession  of  the  bailee,  the 
bailor  shall  have  an  action  of  trespass, 
and  if  he  recovers  by  this,  the  bailee 
shall  never  have  an  action  for  the  ta- 
king. Wherefore,  &c.  Fineux,  C.J.  This 
is  not  a  new  case.  For  a  case  similar 
to  this  has  been  several  times  adjudged 
in  our  books ;  as  in  the  case  of  letting 
beasts  for  a  term  of  years,  and  to  ma- 
nure land,  &c.  And  in  the  case  here 
the  bailee  has  a  properly  ac/ainst  every 
stranger,  for  he  is  chargeable  to  the  bailor. 
And  therefore  it  is  reasonable  that  he 
should  recover  against  any  stranger  who 
takes  them  out  of  his  possession.  There- 
fore, when  the  plaintiff  has  had  convey- 
ed to  him  such  special  property,  it 
seems  that  it  is  good  in  maintenance  of 
his  action.  Marow  then  prayed  further 
time,  and  said  tliat  as  he  was  then  ad- 
vised, he  would  demur  upon  the  pica. 
Fineux,  C.  J.  And  you  will  not  be  so  well 
advised  to  demur  upon  this  plea;  but 
we  shall  be  as  well  advised  to  give 
judgment  against  you." 

{g)  Lethbridge  v.  Phillips,  2  Stark. 
544.  It  appeared  in  this  case  that  a 
person  of  the  name  of  Bernard,  being 
desirous,  for  particular  reasons  of  his 
own,  that  the  defendant  should  see  a 
picture  belonging  to  the  plaintiff,  bor- 
rowed the  picture  of  the  plaintiff  for  the 
purpose  of  sending  it  to  the  defendant, 
and  afterwards  delivered  it  to  a  son  of 
the  defendant  to  be  taken  to  the  defend- 
ant's house.  The  defendant's  son  accord- 
ingly took  it  home,  and  the  picture  was, 
whilst  at  the  defendant's,  much  dama- 
ged in  consequence  of  having  been  placed 
on  a  mantel-piece  near  a  stove.  It  ap- 
peared that  the  picture  had  been  sent 
by  Bernard  to  the  defendant  without 
any  request  on  the  part  of  the  latter, 
and  without  any  previous  communica- 
tion between  them  on  the  subject.  Up- 
on these  facts  Abbott,  C.  J.,  was  of  opi- 
nion that  the  action  could  not  be  sup- 
ported ;  that  the  defendant  could  not, 

[59D] 


580^ 


THE  LAW  OF  CONTRACTS. 


[book  III. 


and  is  liable  for  loss  from  gross  negligence,  (h)  and  may 
*cliarge  the  owner  for  necessary  expense  and  labor  in  the  care 
of  it.  (i)  And  perhaps  his  consent  may  be  absolutely  im- 
plied when  the  property  is  forced  into  his  care  by  extra- 
ordinary exigences,  as  by  fire  or  shipwreck. 


SECTION  11. 


MANDATUM. 


When  the  commission  is  gratuitous,  there  also  the  trans- 
action is  for  the  exclusive  benefit  of  the  bailor,  and  the  bailee 
is  held  only  for  gross  negligence.  In  deposit  the  safe-keeping 
is  the  principal  matter ;  in  mandate,  the  work  to  be  done 


without  his  knowledge  and  consent,  he 
considered  as  a  bailee  of  tiie  property. 
In  some  instances,  he  said,  it  had  liap- 
pened  that  property  of  much  greater 
value  than  that  in  the  present  case  had 
been  left  at  gen tlem ens'  houses  by  mis- 
take, and  in  such  cases  the  parties 
could  not  be  considered  as  bailees  of 
the  property  without  their  consent. 

(h)  "  When  a  man  doth  find  goods," 
says  Lord  Coke,  "  it  hath  been  said,  and 
BO  commonly  held,  that  if  he  doth  dis- 
possess himself  of  them,  by  this  he  shall 
be  discharged  ;  but  this  is  not  so,  as 
appears  by  12  Ed.  4,  13,  for  he  which 
finds  goods  is  bound  to  answer  him  for 
them  who  hath  the  property  ;  and  if  he 
deliver  them  over  to  any  one,  unless  it 
be  iinto  the  right  owner,  he  shall  be 
charged  for  them  ;  for  at  the  first  it 
is  in  his  election  whether  he  will  take 
them  or  not  into  his  custody,  but  when  he 
hath  them,  one  only  hath  then  right  unto 
them,  and  therefore  he  ought  to  keep 
them  safely.  A  man,  therefore,  which 
finds  goods,  if  he  be  wise,  will  then 
search  out  the  right  owner  of  them,  and 
so  deliver  tliem  unto  him.  If  the  owner 
comes  unto  him  and  demands  them, 
and  he  answers  him  that  it  is  not  known 
unto  him  whether  he  be  the  true  owner 
of  the  goods  or  not,  and  for  this  cause 
he  refuseth  to  deliver  them ;  this  refu- 
sal is  no  conversion,  if  he  do  keep  them 
for  him."  Isaac  v.  Clark,  2  Bulst.  .300, 
312.  The  finder  of  property,  for  which 
a  specific  reward  has  been  offered,  has  a 

[600] 


lien  upon  it  for  the  payment  of  the 
amount  of  the  reward.  Went  worth  v. 
Day,  3  Met.  352.  It  is  otherwise  if  the 
offer  be  merely  of  "a  liberal  reward." 
Wilson  V.  Guy  ton,  8  Gill,  213.  — If  a 
person  finds  propert}^  which  another  has 
cast  away  and  abandoned  as  entirely 
worthless,  he  may  hold  it  against  the 
original  owner.  McGoon  v.  Ankeny, 
11  111.  558. 

U)  So  said  in  Story  on  Bailments, 
§  121  a,  but  it  seems  never  to  have 
been  expressly  adjudged.  The  case 
Avhich  comes  nearest  to  it  is  that  of  Ni- 
cholson V.  Chapman,  2  H.  Bl.  254.  In 
this  case  a  quantity  of  timber  belong- 
ing to  the  plaintiff  was  placed  in  a  dock 
on  the  bank  of  a  navigable  river,  and 
being  accidentally  loosened,  was  car- 
ried by  the  tide  to  a  considerable  dis- 
tance, and  left  at  low  water  upon  a  tow- 
ing path.  The  defendant,  fituling  it  in 
that  situation,  voluntarily  conveyed  it 
to  a  place  of  safety,  beyond  the  reach 
of  the  tide  at  high  water ;  and  when 
the  plaintiff  afterwards  sent  to  demand 
the  timber  to  be  restored  to  him,  the 
defendant  refused  to  restore  it  without 
payment  for  his  trouble  and  expense. 
The  plaintiff  thereupon  brouaht  an 
action  of  trover ;  and  the  court  lield  that 
the  defendant  had  no  lien  upon  the  tim- 
ber, and  that  the  action  was  maintain- 
able. Lord  Chief  Justice  Ei/re,  how- 
ever, intimated,  in  the  course  of  his  judg- 
ment, that  the  defendant  might  recover 
for  his  trouble  and  expense  in  some  form 


CH.  XII.]  BAILMENT.  581 

with  or  about  the  thing.  Hence  the  first  is  said  to  lie  in  cus- 
tody, the  second  in  feasance. 

The  cases  are  not  very  numerous,  either  as  to  deposit  or 
mandate.  Perhaps  because  both  are  gratuitous ;  and  it  is 
not  often  that  persons  undertake  to  do  any  thing  of  import- 
ance for  another  without  compensation. 

The  name  mandatum  was  first  used  in  England  by  Brac- 
ton,  who  borrowed  it  from  the  civil  law ;  afterwards  the  word 
commission  was  commonly  used  ;  but  in  recent  times  this  is 
generally  applied  to  dealings  with  factors,  brokers,  &c.,  for 
compensation,  or  to  the  compensation  itself;  and  Sir  Wm. 
Jones  returned  to  Bracton's  word,  which  has  since  been 
generally  used. 

It  is  an  important  and  difficult  question,  what  is  the 
ground  of  the  obligation  of  any  party,  who  undertakes  ^ra/i«- 
itously  to  do  any  thing  in  relation  to  any  goods.  Sir  William 
Jones  says  he  is  bound  to  do,  and  is  responsible  for  not 
doing,  (j)  But  an  examination  of  the  cases  would  lead  to 
a  distinction  not  always  regarded.  If  one  has  property  in- 
trusted to  him,  in  order  that  he  may  do  something  in  or 
about  or  with  that  property,  if  he  accepts  the  property  and 
the  trust,  this  is  a  contract  on  a  consideration  ;  and  he  is 
liable  in  an  action  ex  contractu  for  any  failure  in  the  dis- 
charge of  his  obligation.  But  if  one  be  requested  to  do 
something  in  relation  to  certain  property,  which  is  not  put 

of  action.     After  declaring  that  the  com-  court  would  imply  a   special   instance 

mon  law  gave  the  defendant  no  lien  in  and  request,  as  well  as  a  promise.     On 

such  a  case,  and  that  this  case  could  not  a  quantum  meruit,  the  reasonable  extent 

be  likened  to  a  case  of  salvage,  he  said  :  of  the  recompense  would  come  properly 

"  It  is,  therefore,  a  case  of  mere  finding,  hefore  the  jury."     See  Baker  v.  Hoag,  3 

and  taking  care  of  the  thing  found  (I  Barb.  113,  7  Id.  303.     It  might  he  found 

am    willing   to   agree)   for   the   owner,  somewhat  diOicult,  however,  on  tcchni- 

This  is  a  good  oflicc  and  meritorious,  cal  grounds,  to  support  such  an  action, 

at  least  in  the  moral  sense  of  the  word,  See  Bartholomew  i'.  Jackson,  20  Johns, 

and  certainlj'  entitles  the  party  to  some  28.     Sec  also  ante,  j).  371,  n.  (b.) 
reasonable  rccomjjense  from  the  bounty, 

if  not  from  the  justice  of  the  owner;  (j)  Jones  on  Bailments,  56.  He  bor- 
and  of  wliich,  if  it  were  refused,  a  court  rows  this  principle  from  the  civil  law. 
of  justice  would  go  as  far  as  it  could  go  By  that  law  he  might  accept  or  refuse  a 
towards  enforcing  the  payment."  The  mandate ;  but  having  accepted,  must 
learned  reporter,  in  a  note  to  this  pas-  perform.  '■'■  Liberum  est,  mandatum  non 
sage,  says,  "  It  seems  probable,  that  in  suscipere.  Si  suscejitum  non  imjilererit, 
such  a  case,  if  any  action  could  be  main-  tenetur.  Quod  mandatum  susceperit,  de- 
tained, it  would  lie  an  action  of  assu)iip-  netur,  etsi  non  gessissct."  Balfc  v.  West, 
sit  for  work  and  labor,  in  which   the  22  E.  L.  &  E.  506. 

VOL.    I.  51  [601] 


582  *  THE  LAW  OF  CONTRACTS.         [BOOK  III. 

into  his  possession,  nor  any  consideration  paid  him,  although 
he  undertake  to  do  what  is  requested,  he  is  under  no  obliga- 
tion ;  there  is  no  contract,  because  no  consideration.  He  is 
therefore  not  liable  for  not  doing ;  but  if  he  begins  to  do, 
that  is,  enters  upon  the  execution  of  his  agency,  (for  it  is  that 
rather  than  a  mandate  at  common  law,)  and  then  fails  to  do 
what  he  undertakes  to  do,  he  is  liable  for  malfeasance  ;  but 
only  in  an  action  ex  delicto,  and  not  ex  contractu,  (k)  The 
case  of  Thome  v.  Deas,  (Z)  in  fact  *  rests  upon  this  distinc- 
tion, and  is  therefore  properly  decided  ;  but  it  is  treated  as  a 
case  of  mandate,  and  an  elaborate  examination  of  authori- 
ties leads  the  learned  court  to  the  rule  that  no  mandatary  is 
liable,  unless  he,  in  addition  to  his  acceptance  of  the  pro- 
perty and  the  trust,  enters  upon  an  execution  of  it,  and  then 
fails  therein.  This  rule,  as  applicable  to  the  mandatary 
properly  so  called,  admits  of  much  doubt,  although  we  ac- 
knowledge that  the  question  is  encumbered  with  some  diffi- 
culties. 

It  has  indeed  been  very  strenuously  insisted  upon  in  several 
instances,  by  able  and  learned  writers,  that  mandates  and 
deposits  are  not  contracts ;  and  that  the  liability  of  bailees 
of  this  class  rests  wholly  upon  the  ground  of  tort.  If  this 
were  to  be  taken  as  the  true  rule  of  law,  it  might  occasion 
serious  inconvenience.  For  it  is  doubtful  whether  gratuitous 
bailees  could  be  made  liable  in  tort  in  several  cases  to  which 
it  has  generally  been  supposed  that  their  liability  extended. 
But  we  think  there  is  no  insuperable  objection  to  considering 
mandates  and  deposits  as  contracts,  and  enforcing  the  obli- 
gations arising  out  of  them  by  the  action  of  assumpsit.  It 
is  obvious  that  the  only  objection  to  so  considering  them  is 
the  alleged  want  of  a  sufficient  consideration.  But  we  re- 
gard it  as  well  settled  by  the  authorities,  that  the  delivery 
and  acceptance  of  the  goods  constitute  a  sufficient  consider- 
ation, (m)     Nor  do  we  regard  it  as  an  unreasonable  doctrine 

(k)  "Wilkinson  v.  Coverdale,  1  Esp.  (m)  This  was  adjudged  for  the  first 

74 ;   French  v.  Reed,   6   Binney,  308 ;  time,  we  believe,  in  the  King's  Bench, 

Seller  v.  Work,  1  Marsh,  on  Insurance,  in  44   Eliz.  in  the  case   of  Eiches  v. 

299.  Brigges,  Yelv.  4,  Cro.  Eliz.   883.    In 

(/)  4  Johns.  84-     See  infra,  p.  586,  that  case  the  plaintiff  declared  that  in 

n.  (o.)  consideration  he  had  delivered  to  the 

[602] 


CH.   XII.] 


BAILMENT. 


583 


upon  principle.     It  is  true  that  the  bailee  does  not  ordinarily 
derive  any  benefit  from  such  a  transaction  ;  but  this  is  not 


defendant  twenty  quarters  of  wheat,  the 
defendant  promised  upon  request  to  de- 
liver the  same  wheat  again  to  the  plain- 
tiff. And  this  was  adjudged,  on  a  mo- 
tion in  arrest  of  judgment,  to  be  a  good 
consideration.  But  the  case  is  said  to 
have  been  afterwards  reversed  in  tlie 
Exchequer  Chamber.  The  same  point 
arose  again  in  2  Jac,  in  tlie  case  of 
Game  v.  Harvie,  Yelv.  50,  and  in  6  Jac. 
in  the  case  of  Pickas  v.  Guile,  Yelv. 
128.  In  both  of  these  cases,  the  Court 
of  King's  Bench  followed  the  decision 
of  the  Exchequer  Chamber,  reversing 
Riches  v.  Brigges,  but  at  the  same  time 
said  that  that  case  was  erroneously  re- 
versed. Afterwards,  in  21  Jac,  the 
same  point  arose  again  in  the  case  of 
Wheatley  v.  Low,  Cro.  Jac.  668.  In 
this  case  the  plaintiff  declared  that 
whereas  he  was  obliged  to  J.  S.  in  forty 
pounds  for  the  payment  of  twenty 
pounds ;  and  the  bond  being  forfeited, 
he  delivered  ten  pounds  to  the  defend- 
ant, to  the  intent  he  should  pay  it  to  J. 
S.  in  part  of  payment  sine  ulla  mora ; 
that  in  consideration  thereof  the  defend- 
ant assumed,  &c.  The  defendant  plead- 
ed non-assumpsit,  and  a  verdict  having 
been  found  for  the  plaintiff,  it  was 
moved  in  arrest  of  judgment  that  this 
was  not  any  consideration,  because  it 
was  not  alleged  that  he  delivered  it  to 
the  defendant  upon  his  request ;  and  the 
acceptance  of  it  to  deliver  to  another 
sine  mora  could  not  be  any  benefit  to 
the  defendant  to  charge  him  with  this 
promise.  Sed  non  allocatur;  for,  since 
he  accepted  this  money  to  deliver,  and 
promised  to  deliver  it,  it  was  a  good 
considcratiou  to  charge  him.  This 
judgment  was  affirmed  in  the  Exche- 
quer Chamber  on  a  writ  of  error.  This 
case  was  sanctioned  to  the  fullest  ex- 
tent by  Lord  Holt,  in  Coggs  v.  Bernard. 
He  there  says  :  —  "  There  has  been  a 
question  made,  If  I  deliver  goods  to  A., 
and  in  consideration  thereof  he  promise 
to  redeliver  them,  if  an  action  will  lie 
for  not  redelivering  them  ;  and  in  Yelv. 
4,  judgment  was  given  that  the  action 
would  lie.  But  that  judgment  was 
afterwards  reversed,  and,  according  to 
that  reversal,  there  was  judgment  after- 
wards entered  for  the  defendant  in  the 
like  case.  Yelv.  128.  But  those  cases 
were  grumbled  at,  and  the  reversal  of 


that  judgment  in  Yelv.  4,  was  said  by 
the  judges  to  be  a  bad  resolution,  and 
the  contrary  to  that  reversal  was  after- 
wards most  solemnly  adjudged  in  2 
Cro.  667,  Tr.  21,  Jac.  1,  in  the  King's 
Bench,  and  that  judgment  affirmed  upon 
a  writ  of  error.  And  yet  there  is  no 
benefit  to  the  defendant,  nor  no  con- 
sideration, in  that  case,  but  the  having 
the  money  in  his  possession,  and  being 
trusted  with  it,  and  yet  that  was  held  to 
be  a  good  consideration.  And  so  a  bare 
being  trusted  with  another  man's  goods 
must  be  taken  to  be  a  sufficient  con- 
sideration, if  the  bailee  once  enter  upon 
the  trust,  and  take  the  goods  into  his 
possession."  Wheatley  v.  Low,  has  al- 
ways been  considered  as  good  law  from 
that  time  to  this.  We  are  not  aware 
that  any  adjudged  case  has  cast  any 
doubt  upon  it,  at  least  so  fiir  as  the 
point  in  question  is  concerned.  On  the 
other  hand,  there  are  numerous  cases  in 
which  assumpsit  has  been  sustained  on 
no  other  consideration  than  what  exist- 
ed in  that  case.  Thus,  in  the  case  of 
Shiells,  assignee  of  Goodwin,  v.  Black- 
burne,  1  H.  Bl.  158,  the  defendant,  who 
was  a  general  merchant  in  London, 
having  received  orders  from  his  corres- 
pondent in  Madeira  to  send  thither  a 
quantity  of  leather  cut  out  for  shoes 
and  boots,  employed  Goodwin,  the  bank- 
rupt, who  was  a  shoemaker,  to  execute 
the  order.  Goodwin  accordingly  pre- 
pared the  leather  for  the  defendant,  and 
at  the  same  time  prepared  another  par- 
cel of  the  same  kind  of  leather  on  his 
own  account,  which  he  packed  in  a 
separate  case,  to  be  sent  to  JMadeira  on 
a  venture,  requesting  tlie  recommenda- 
tion of  the  defendant  to  his  correspond- 
ents in  the  sale  of  it.  The  two  cases 
were  sent  to  the  defendant's  house,  with 
bills  of  parcels ;  and  he,  to  save  the  ex- 
pense and  trouble  of  a  double  entry  at 
the  custom-house,  voluntarily  and  with- 
out any  compensation,  by  agreement 
with  Goodwin,  made  one  entry  of  both 
the  cases,  but  did  it  under  the  denomi- 
nation of  lorought  leather,  instead  of 
dressed  leather,  whicli  it  ought  to  have 
been.  In  consequence  of  this  mistake, 
both  cases  were  seized,  and  this  action 
was  brought  by  the  assignees  of  Good- 
win, to  recover  the  value  of  the  leather 
which  he  had  prepared  on  his  own  ac- 

[603] 


584 


THE   LAW   OF   CONTRACTS. 


BOOK  III, 


necessary  in  order  to  constitute  a  good  consideration.  It  is 
sufficient,  if  an  injury  accrues  or  may  accrue  to  the  bailor,  or 
if  he  parts  with  a  present  right.  That  such  is  the  case,  it 
would  seem  that  there  could  be  no  doubt.  He  intrusts  his 
goods  to  the  bailee,  and  thereby  renders  them  liable  to  be 
lost  or  injured.     He  parts  with  his  present  control  over  them. 


count.     The  first  count  in  the  declara- 
ation  stated  that  the  bankrupt  before  his 
bankruptcy  was  possessed  of  a  quantity 
of  leather,  which  he  designed  to  export 
to  the  island  of  Madeira,  for  which  pur- 
pose   it   was    necessary   that   a   proper 
entry  of  it  should  be  made  at  the  custom- 
house ;  that  the  defendant,  in  consider- 
ation that  the  bankrupt  would  permit 
him  to  enter  the    said   leather  at   the 
custom-house,    undertook     to   enter  it 
under  a  right  denomination  ;    that  the 
bankrupt  confiding  in  the  undertaking 
of  the  defendant,  did  permit  him  to  enter 
it  at  the  custom-house  for  exportation  ; 
that  the  defendant  did  not  enter  it  under 
a  right  denomination,  but,  on  the  con- 
trary, made  an  entry  of  it  under  a  wrong 
denomination,   by   means   whereof,  &c. 
If    tliere   can   be    any   possible    doubt 
whether  this  count  is  wholly  in  assump- 
sit, it  maybe  observed  that  it  was  joined 
with  a  count  for  goods  sold  and  deliver- 
ed, and  a  count  on  a  quantum  meruit.    In 
the    case   of  Whitehead   v.    Greetham, 
McClel.  &  Y.  205,  in  the  Exchequer 
Chamber,  the    declaration    stated   that 
■whereas  the  plaintiff,  at  the  special  in- 
stance and  request  of  the  defendant,  re- 
tained and  employed  the  defendant  to 
lay  out  a  certain  sum  of  money  for  the 
plaintiff,  in  the  purchase  of  an  annuity, 
to  be  well  and  sufficiently  secured,  he 
the  said  defendant  undertook  to  use  due 
and  sufficient  care  to  lay  out  the  said 
sum  of  money  in  the  purchase  of  an  an- 
nuity, the  payment  whereof  should  be 
well  and  sufficiently  secured  ;   and  the 
said  plaintiff"  in  fact  saith,  &c.     Judg- 
ment having  been  given  for  the  plain- 
tiff" in  the  King's  Bench,  a  writ  of  error 
was   brought,  and  the  error  relied   on 
was,  that  no  sufficient  consideration  ap- 
peared on  the  face  of  the  declaration. 
The  ground  relied  on,  however,  by  Tin- 
dal,  for  the  plaintiff"  in   error,  was,  not 
that  the  intrusting  the  defendant  with 
the  money  was  not  a  sufficient  consider- 
ation, but  that  it  did  not  sufficiently  ap- 

[604] 


pear  from  the  declaration  that  that  was 
the  consideration  of  the  defendant's  pro- 
mise. He  said:  —  "It  was  essential  to 
the  establishment  of  his  case  that  the 
moving  cause  of  the  defendant's  pro- 
mise was  the  plaintiff's  having  intrusted 
him  with  this  money  to  lay  out,  and 
there  is  nothing  in  the  count  in  ques- 
tion to  show  that."  Sed  non  allocatur, 
for  per  Best^  C.  J.,  delivering  the  judg- 
ment of  the  court :  —  ".The  count  has 
averred  that  the  plaintiff,  at  the  defend- 
ant's request,  retained  the  defendant  to 
lay  out  a  sum  of  money  in  the  purchase 
of  an  annuity,  and  delivered  him  £700 
for  that  purpose;  and  that  the  defendant 
undertook,  and  faithfully  promised  the 
plaintiff",  to  use  due  and  sufficient  care 
to  advance  and  lay  out  that  money  in 
the  purchase  of  an  annuity,  the  payment 
whereof  should  be  well  and  sufficiently 
secured.  Coggs  r.  Bernard  decides  that 
the  mere  delivery  of  the  article  is  abun- 
dant consideration.  There  the  consi- 
deration was  the  delivery  of  brandy. 
The  same  consideration  exists  here, 
because  money  was  delivered.  It  is 
said  it  does  not  appear  that  the  delivery 
was  the  consideration  of  the  defendant's 
promise.  But  the  money  was  delivered 
by  the  plaintiff's  hand  to  the  defendant, 
which,  in  law,  raises  a  responsibility  in 
the  defendant  for  its  application  ;  and 
Avhen  that  fact  is  found  by  the  jury,  and 
that  immediately  after  a  promise  was 
made  by  the  defendant  to  tlie  plaintiff, 
must  it  not  be  taken  that  the  promise 
was  in  consideration  of  the  delivery  ?  " 
The  case  of  Doorman  v.  Jenkins,  2  Ad. 
&  El.  256,  is  equally  in  point.  That  was 
an  action  of  assumpsit,  and  the  decla- 
ration wa3  very  similar  to  those  that 
we  have  already  considered,  and  no  ob- 
jection taken  to  it.  See  also  Shillibeer 
V.  Glyn,  2  M.  &  W.  143  ;  Eutgers  v.  Lu- 
cet,  2  Johns.  Cas.  92  ;  Eobinson  v. 
Threadgill,  13  Ired.  39.  And  see  Ante, 
p.  372. 


CH.   Xir.]  BAILMENT.  *585 

and  perhaps  renders  himself  unable  to  give  the  trust  to  any 
one  else,  or  to  execute  it  himself. 

But  although  it  thus  appears  that  gratuitous  bailees 
may  be  made  liable  ex  contractu^  if  they  have  not  per- 
formed their  contract,  it  is  obvious  that  they  may  also  be 
made  liable  ex  delicto^  if  they  have  committed  a  tort  upon 
the  property  intrusted  to  them.  And  it  is  in  reference 
to  their  liability  ex  delicto  that  the  distinction,  which  has 
occasioned  so  much  discussion  in  our  books,  betw^een  non- 
feasance and  misfeasance,  becomes  important.  It  seems 
sometimes  to  have  been  supposed  that  this  distinction  *  has 
reference  to  their  liability  ex  contractu;  that  a  mandatary 
does  not  incur  any  obligation  ex  contractu  until  he  enters 
upon  the  execution  of  his  trust,  but  that  he  does  incur 
such  obligation  when  he  enters  upon  the  trust,  and  fails  to 
go  through  with  it  or  does  it  badly ;  and  that  if  the  mere  de- 
livery of  the  goods  imposes  such  obligation,  it  is  not  on  the 
ground  that  such  delivery  with  the  acceptance  constitutes  a 
good  consideration,  but  on  the  ground  that  it  amounts  to  a 
part  execution  of  the  trust.  This,  however,  we  must  regard 
as  erroneous. 

It  is  very  difficult  to  understand  how  a  man  can  become 
liable  ex  contractu  for  not  completing  a  work  which  he  has 
begun,  when  he  was  under  no  legal  obligation  to  begin  it.  But 
when  we  consider  the  distinction  between  nonfeasance  and 
misfeasance  in  reference  to  liability  in  tort,  it  becomes  very  in- 
telligible, {n)     The  common  law  looks  upon  an  injury  which 


(n)  The  position  which  we  have  en-  that  the  evidence,  if  hclieved,  was  suffi- 

deavored  to  maintain,  that  the  distinc-  cient  to  prove  the  consideration  alleged, 

tion    between   misfeasance    and   nonfea-  and  the  jury  having  returned  a  verdict 

sance  has  exclusive  reference  to  liability  for  the  plaintiff,  the  defendant  filed  a 

sounding  in  tort,  is  fully  supported  by  bill  of  exceptions,  and  brought  a  writ 

the  case  of  Benden  v.  Manning,  2  New  of  error.     And  the  court  having  decided 

Hamp.  289.    It  was  an  action  of  as-  that  there  was  no  evidence  to  prove  the 

sumpsit  against  a  tailor  for  making  a  consideration  alleged,  the  defendant  in 

coat  in  an  unskilful  and  improper  man-  error  contended  that  the  action  might 

ner,  which  he  had  contracted  to  make  be  supported  on  the  ground  of  a  niis- 

in  a  skilful  and  proper  manner.     The  feasance.     But  Richardson,  C.  J.,  said : 

consideration  for  the  promise  laid  in  the  "  It  has  been  contended  on  the  part  of 

declaration  was  a  certain  sum  of  money  the  defendant  in  error  that  this  action 

in  that  behalf  paid.     At  the  trial,  the  is  brought  to  recover  damages,  not  for 

defendant  objected  that  there  was   no  a  mere  nonfeasance,  but  for  a  misfeasance, 

evidence  to  prove  the  consideration  so  and  therefore  it  was  unnecessary  to  al- 

laid.      The   court  instructed  the  jury  lege  or  prove  a  consideration.    It  is  very 

51  *  [605] 


586 


THE   LAW   OF   CONTRACTS. 


[book  hi. 


accrues  from  mere  nonfeasance  as  too  remote  to  lay  the  foun- 
dation for  an  action  of  tort;  for  this  purpose  it  requires  that 
the  injury  should  be  the  direct  and  immediate  consequence 
of  the  conduct  complained  of.  (o) 

A  mandatary,  as  we  have  already  intimated,  is  generally 
bound  to  exercise  only  slight  diligence,  and  is  responsible 
only  for  gross  neglect,  {'p)     The  parties  may,  however,  vary 


clear  that  no  man  can  be  liable  for  the 
mere  non-performance  of  a  promise 
made  without  consideration  ;  of  course, 
when  an  action  is  brought  to  recover 
damages  for  the  non-performance  of  a 
contract,  a  consideration  must  be  alle- 
ged and  proved.  But  when  one  man 
does  another  an  injury,  by  unskilfully 
and  improperly  doing  what  he  had  pro- 
mised to  do,  an  action  may  be  main- 
tained to  recover  the  damage  although 
there  M-as  no  consideration  for  the  pro- 
mise. The  reason  of  this  distinction  is 
very  obvious,  but  it  is  a  distinction  that 
cannot  avail  the  defendant  in  error. 
His  action  was  assumpsit,  founded  upon 
the  breach  of  certain  promises  alleged 
to  have  been  made  upon  certain  consi- 
derations. The  very  gist  of  the  action 
was  the  breach  of  a  valid  contract.  But, 
if  the  promises  were  made  without  con- 
sideration, they  were  mere  nuda  pacta, 
and  no  action  could  be  maintained  upon 
them.  And  if  the  consideration  alleged 
were  not  proved,  the  action  was  not 
supported.  But  if,  instead  of  assump- 
sit, a  special  action  upon  the  case  had 
been  brought  for  misfeasance,  it  is  very 
clear  that  no  consideration  need  have 
been  alleged  or  proved.  The  gist  of 
such  an  action  would  have  been  the 
misfeasance,  and  it  would  have  been 
wholly  immaterial  whether  the  contract 
was  a  valid  one  or  not."  See  also  El- 
see  V.  Gatward,  5  T.  R.  143,  which  sub- 
stantially recognizes  the  same  distinc- 
tion. —  If  our  positions  are  correct,  it 
follows  that  in  all  eases  of  proper  man- 
date, that  is,  where  property  is  intrusted, 
the  bailor  may  have  two  remedies  for 
any  injury  done  him  by  the  bailee.  He 
may  have  an  action  of  assumpsit  for  a 
breach  of  contract  on  tlie  part  of  the 
bailee ;  or  if  the  conduct  of  the  bailee 
amounts  to  an  actionable  tort,  the  bailor 
may  waive  the  contract,  and  bring  an 
action  sounding  in  tort.  On  the  other 
hand,  in  cases  of  mere  gratuitous  agen- 
cy, where  no  property  is  intrusted,  the 

[606] 


only  remedy  which  the  principal  can 
have  against  the  agent  is  by  an  action 
ex  delicto.  And  if  the  agent  has  com- 
mitted no  act  which  amounts  to  an 
actionable  tort,  the  principal  is  without 
remedy.  It  should  be  observed,  how- 
ever, that  the  delivery  of  a  letter  to  be 
carried  from  place  to  place,  or  the  de- 
livery of  a  promissory  note  or  bill  of 
exchange  for  the  purpose  of  collection 
would  probably  be  held  to  be  proper 
mandates,  and  the  bailee  in  such  cases 
would  be  held  liable  ex  contractu.  Ro- 
binson V.  Threadgill,  13  Ire.  L.  4! .  The 
liability  of  banks  for  due  diligence  in 
the  collection  of  negotiable  paper  in- 
trusted to  them  for  that  purpose,  seems 
to  rest  upon  this  principle.  See  Smedes 
V.  The  Bank  of  Utica,  -20  Johns.  372, 
3  Cow.  662  ;  Bank  of  Utica  v.  McKin- 
ster,  11  Wend.  473;  Mechanics  Bank 
V.  Merchants  Bank.  6  ]Met.  13.  Chan- 
cellor Ke7it  says :  —  "  Receiving  a  letter 
to  deliver,  or  money  to  pay,  or  a  note 
by  a  bank  to  collect,  and  by  negligence 
omitting  to  perform  the  trust,  the  man- 
datary, though  acting  gratuitously  be- 
comes responsible  for  damages  result- 
ing from  his  negligence.  The  delivery 
and  I'eceipt  of  the  letter,  money,  or 
note,  creates  a  sufficient  consideration 
to  support  the  contract,  and  is  a  part 
execution  of  it."  Sec  2  Kent.  Com. 
571,  n.  a. 

(o)  See  Salem  Bank  v.  Gloucester 
Bank,  17  Mass.  1,  30.  The  leading 
case  on  this  point  in  this  country  is 
Thome  v.  Deas,  4  Johns.  84,  already 
referred  to.  In  that  case  A.  and  B. 
being  joint  owners  of  a  vessel,  A.  vo- 
luntarily undertook  to  get  the  vessel  in- 
sured, but  neglected  to  do  so,  and  the 
vessel  was  afterwards  lost.  The  court 
held  that  no  action  would  lie  against 
A.  for  the  non-performance  of  this  pro- 
mise, though  13.  sustained  a  damage 
therebv.  See  also  Balfe  r.  West,  22 
E.  L.  &  E.  506. 

(p)  The  Roman  law  seems  to  have 


CH.   XII.] 


BAILMENT. 


587 


the   terms   of  the   contract  at  their   pleasure  by  a  special 
agreement.     So  a  mandatary  may  impose  upon  himself  an 


been  different  in  this  respect.  By  that 
law  every  mandatary  seems  to  have 
been  bound  to  bestow  on  the  matter 
with  which  he  was  charged  all  the  dili- 
gence and  skill  which  the  proper  exe- 
cution of  it  required.  See  Story  on 
Bailments,  §  173.  Sir  William  Jones 
professed  to  follow  the  Koman  law  in 
this  respect,  but  attempted  to  make  a 
distinction  between  a  mandate  1o  curry 
and  a  mandate  to  perform  a  work,  hold- 
ing that  the  rule  did  not  apply  to  the 
former,  and  that  mandataries  of  that 
class  were,  like  depositaries,  liable  only 
for  gross  negligence.  Essay  on  Bail- 
ments, 52,  62.  Mr.  Justice  Story  is  of 
opinion  that  there  is  no  foundation  for 
this  distinction  in  the  Koman  law,  and 
there  certainly  is  none  in  our  law.  On 
the  other  hand,  the  rule  is  perfectly  es- 
tablished with  us  that  the  same  degree 
of  diligence  is  required  in  cases  of  man- 
date, whether  it  be  to  carry  or  to  perform 
a  work,  as  in  cases  of  deposit.  This 
was  very  authoritatively  declared  in  the 
case  of  Shiells  i'.  Blackburne,  1  H.  Bl. 
158,  the  facts  of  which  are  stated  ante, 
p.  583,  n.  {ni.)  Lord  Loughborough  there 
observed  :  —  "I  agree  with  Sir  William 
Jones,  that  where  a  bailee  undertakes  to 
perform  a  gratuitous  act,  from  which 
the  bailor  alone  is  to  receive  benefit, 
there  the  bailee  is  only  liable  for  gross 
negligence;  but  if  a  man  gratuitously 
undertakes  to  do  a  thing  to  the  best  of 
his  skill,  where  his  situation  or  profes- 
sion is  such  as  to  imply  skill,  an  omission 
of  that  skill  is  imputable  to  him  as  gross 
negligence.  If  in  this  case  a  ship-bro- 
ker, or  clerk  in  the  custom-house,  liad 
undertaken  to  enter  the  goods,  a  wrong 
entry  would  in  them  be  gross  negli- 
gence, because  their  situation  and  em- 
ployment necessarily  imply  a  competent 
degree  of  knowledge  in  making  such 
entries.  But  when  an  application,  un- 
der the  circumstances  of  this  case,  is 
made  to  a  general  merchant  to  make 
an  entry  at  the  custom-house,  such  a 
mistake  as  this  is  not  to  be  imputed  to 
him  as  gross  negligence."  Sbc  also  to 
the  same  point  Stanton  v.  Bell,  2  Hawks, 
145  ;  Beardsleey.  Richardson,  11  Wend. 
25.  No  definite  rule  can  be  laid  down 
as  to  what  will  constitute  gross  negli- 
gence in  each  particular  case.  For  this 
purpose,  the  nature  and  circumstances 


of  the  case,  and  the  terms  of  the  con- 
tract, must  be  carefully  attended  to.  In 
the  case  of  Fellowes  v.  Gordon,  8  B. 
Monr.  415,  the  plaintiff,  being  indebted 
to  the  defendant  and  holding  a  note 
against  the  owners  of  a  certain  steamer, 
delivered  the  note  which  he  so  held  to 
the  defendant  to  be  collected  through  a 
certain  house  at  New  Orleans,  with 
which  the  defendant,  who  had  a  house  at 
Louisville,  was  connected,  the  proceeds 
to  be  applied  to  the  payment  of  the  de- 
fendant's demand.  When  the  note  was 
delivered,  the  plaintiff  informed  the  de- 
fendant that  tiie  solvency  of  the  boat 
and  owners  was  doubtful,  and  that  the 
only  probable  means  of  saving  the  claim 
was  to  attach  the  boat  at  New  Orleans 
on  her  first  arrival  there  after  the  note 
became  due,  unless  the  note  should  be 
paid.  The  note  was  sent  by  the  defend- 
ant to  the  house  at  New  Orleans,  by 
which  it  was  presented,  and  payment  de- 
manded, on  the  first  arrival  of  the  boat  at 
that  city,  but  on  payment  of  $100,  (one 
sixth  only  of  the  debt,)  the  boat  was  per- 
mitted to  depart,  and  on  her  arrival  at 
Nashville  a  short  time  afterwards,  she 
was  attached  for  other  debts  and  sold, 
before  the  note  was  returned  to  the 
plaintiffs,  for  an  amount  not  sufficient  to 
pay  the  attaching  creditors.  The  court 
held  this  to  be  a  breach  of  duty  for 
which  the  defendant  was  liable.  And 
Marshall,  C.  J.,  said :  —  "  Regarding  the 
houses  at  Louisville  and  New  Orleans 
as  merely  gratuitous  bailees,  still  hav- 
ing undertaken  the  commission,  and 
proceeded  in  its  execution,  each  was 
bound  to  proceed  with  reasonable  care 
and  diligence,  according  to  the  terms  of 
the  mandate.  And  a  failure  in  the  per- 
formance of  this  obligation  was  a  breach 
of  duty,  for  which,  on  well  established 
principles,  the  delinquent  party  is  liable 
in  case  of  loss  produced  by  his  neglect. 
A  bailee,  receiving  property  under  par- 
ticular directions  as  to  its  disposition, 
impliedly  undertakes  to  dispose  of  it 
according  to  those  directions,  and  may 
be  made  liable  for  the  loss  consequent 
upon  his  failure  or  neglect  to  do  so,  and 
especially  if  he  actually  proceed  with 
the  business  committed  to  him."  On 
the  other  hand,  in  the  case  of  Whitney 
V.  Lee,  8  Met.  91,  where  a  promissory 
note  was  delivered  to  the  defendant,  on 

[607] 


588* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


additional  degree  of  liability  by  his  interfering  with  the 
property  committed  to  his  charge,  by  which  its  custody  is 
'rendered  more  insecure,  (fi)  So  it  may  be  gathered  from  the 
cases,  and  from  obvious  reasons,  that  where  the  work  to  be 
done  requires  peculiar  skill  and  care,  and  the  mandatary  un- 
dertakes it  in  such  way  as  to  be  bound  to  go  through  with 
it,  the  want  of  the  required  skill  and  care  would  be  negli- 
gence enough,  (r)     Indeed,  it  would  be  in  that  case  gross 


his  voluntarily  undertaking,  without  re- 
ward, "  to  secure  and  taiie  care  of  it," 
it  was  held,  that  he  was  not  bound  to 
take  any  active  measures  to  obtain 
security,  but  was  simply  bound  to  keep 
the  note  carefully  and  securely,  and 
receive  the  money  due  thereon  when 
offered.  Shaw,  C.  J.,  remarked :  — 
"  The  term  to  '  secure '  may  be  deemed 
ambiguous,  meaning  either  to  obtain 
security,  or  to  keep  securely ;  but  asso- 
ciated with  the  words  '  take  care  of,' 
and  being  a  gratuitous  undertaking,  we 
do  not  understand  that  the  defendant 
was  to  take'active  measures  to  obtain  se- 
curity, but  simply  to  keep  the  note  care- 
fully and  securely,  and  receive  the  mo- 
ney due  thereon,  when  offered.  This  last 
authority  and  duty  would  seem  to  result 
from  the  custody  of  the  note.  .  .  The 
law  has  endeavored  to  make  a  distinc- 
tion in  the  degrees  of  care  and  diligence 
to  which  different  bailees  are  bound ; 
distinguishing  between  gross  negligence, 
ordinary  negligence,  and  slight  negli- 
gence ;  though  it  is  often  difficult  to 
mark  the  line  where  the  one  ends  and 
the  other  begins.  And  it  must  be  often 
left  to  the  jury,  upon  the  nature  of  the 
subject-matter,  and  the  particular  cir- 
cumstances of  each  case,  with  suitable 
remarks  by  the  judge,  to  say  whether 
the  particular  case  is  within  the  one  or 
the  other."  See  also  Mechanics  &  Trad- 
ers Bank  v.  Gordon,  5  Louis.  Ann.  604. 

{q)  Nelson  v.  Macintosh,  1  Starkie, 
237 ;  Bradish  v.  Henderson,  1  Dane's 
Abr.  310. 

(r)  See  the  remarks  of  Lord  Lough- 
borough, in  the  case  of  Shiells  v.  Black- 
burne,  quoted  ante,  p.  567,  n.  (p.)  Mr. 
Justice  Heath  in  the  same  case  said :  — 
"  If  a  man  applies  to  a  surgeon  to  at- 
tend him  in  a  disorder,  for  a  reward, 
and  the  surgeon  treats  him  improperly, 
there  is  gross  negligence,  and  the  sur- 
geon is  liable  to  an  action  ;  the  surgeon 
would  also  be  liable  for  such  negligence, 

[608] 


if  he  undertook  gratis  to  attend  a  sick 
person,  because  his  situation  implies 
skill  in  surgery ;  but  if  the  patient  ap- 
plies to  a  man  of  a  different  employ- 
ment or  occupation,  for  his  gratuitous 
assistance,  who  either  does  not  exert  all 
his  skill,  or  administers  improper  reme- 
dies to  the  best  of  his  ability,  such  per- 
son is  not  liable."  But  even  a  man- 
datary whose  occupation  implies  pecu- 
liar skill,  is  not  required  to  exercise  the 
greatest  amount  of  skill ;  if  he  exercises 
such  skill  as  is  usually  exercised  by 
members  of  his  profession,  it  is  suffi- 
cient. The  law  upon  this  subject  is  ad- 
mirably stated  by  Mr.  Justice  Porter,  in 
the  case  of  Percy  v.  Millaudon,  20  Mar- 
tin, 68,  75.  His  language  was  as  fol- 
lows :  —  "  It  is  said  by  a  writer  of  great 
authority,  [Pothier,]  who  treats  of  the 
doctrine  of  mandate,  that  the  mandatary 
cannot  excuse  himself  by  alleging  a 
want  of  ability  to  discharge  the  trust 
undertaken.  That  it  will  not  be  suffi- 
cient for  him  to  say  he  acted  to  the 
best  of  his  ability,  because  he  should 
have  formed  a  more  just  estimate  of  his 
own  capacity  before  he  engaged  him- 
self. That,  if  he  had  not  agreed  to  be- 
come the  agent,  the  principal  could  have 
found  some  other  person  willing  and 
capable  of  transacting  the  business  cor- 
rectly. This  doctrine,  if  sound,  would 
make  the  attorney  in  fact  responsible 
for  every  error  in  judgment,  no  matter 
what  care  and  attention  he  exercised  in 
forming  his  opinion.  It  would  make 
him  liable  to  the  principal  in  all  doubt- 
ful cases,  where  the  wisdom  or  legality 
of  one  or  more  alternatives  was  pre- 
sented for  his  consideration,  no  matter 
how  difficult  the  subject  was.  And  if 
the  embarrassment,  in  the  choice  of 
measures,  grew  out  of  a  legal  difficulty, 
it  would  require  from  him  knowledge 
and  learning,  which  the  law  only  pre- 
sumes in  those  who  have  made  the  ju- 
risprudence of  their  country  the  study 


CH.   XII.] 


BAILMENT. 


i89 


negligence.  But  it  might  be  otherwise,  if  the  owner  had  no 
reason  to  believe  that  the  mandatary  possessed  skill  suffi- 
cient for  the  precise  purpose  for  which  he  was  employed  ;  and 
certainly  would  be,  if  he  had  good"  reason  to  know  that  he 
had  not  the  skill ;  as  if  he  gave  a  valuable  watch  to  be  re- 
paired, to  one  whom  he  knew  to  be  not  a  watchmaker  ;  or  to 
one  who,  although  a  watchmaker,  was  known  by  him  to  be 
unaccustomed  to  watches  of  that  kind.  All  these  differences 
rest  upon  the  ground  of  the  presumed  intention  of  the  parties. 
And  on  the  same  principle,  although  the  subject-matter  of 
the  mandate  do  not  necessarily  imply  superior  skill  in  the 
mandatary,  still  if  he  is  known  to  possess  superior  skill  he  is 
bound  to  exercise  it.  (s) 


of  their  lives,  and  which  knowledge  of- 
ten fiiils  in  them  from  the  intrinsic  diffi- 
culty of  the  subject,  and  tlie  fiillibility 
of  human  judgment.  It  is  no  duubt 
true,  that  if  the  business  to  be  trans- 
acted presupposes  the  exercise  of  a 
peculiar  kind  of  knowledge,  a  person 
who  would  accept  the  office  of  manda- 
tary, totally  ignorant  of  the  subject, 
could  not  excuse  himself  on  the  ground 
that  he  dischai-ged  his  trust  with  fidelity 
and  care.  A  lawyer  who  would  under- 
take to  perform  the  duties  of  a  phy- 
sician ;  a  physician,  who  would  become 
an  agent  to  carry  on  a  suit  in  a  court  of 
justice  ;  a  bricklayer,  who  would  pro- 
pose to  repair  a  ship,  or  a  landsman 
who  would  embark  on  board  a  vessel  to 
navigate  hci',  may  be  presented  as  ex- 
amples to  illustrate  this  distinction. 
But  when  the  person  who  is  appointed 
attorney  in  fact  has  the  qualifications 
necessary  for  tlie  discharge  of  the  ordi- 
nary duties  of  the  trust  imposed,  we  are 
of  opinion  that  on  the  occurrence  of 
difficulties  in  the  exercise  of  it,  which 
offer  only  a  choice  of  measures,  the 
adoption  of  a  course  from  which  loss 
ensues  cannot  make  the  agent  responsi- 
ble, if  the  error  was  one  into  which  a 
prudent  man  might  have  fallen.  The 
contrary  doctrine  seems  to  us,  to  sup- 
pose the  possession,  and  require  the  ex- 
ercise of  perfect  wisdom  in  fallible  be- 
ings. No  man  would  undertake  to  ren- 
der a  service  to  another  on  such  severe 
conditions.  The  reason  given  for  the 
rule,  namely,  that  if  the  mandatary  had 
not  accepted  the  office,  a  person  capa- 


ble of  discharging  the  duty  correctly 
would  have  been  found,  is  quite  unsa- 
tisfactory. The  person  who  would  have 
accepted,  no  matter  who  he  might  be, 
must  have  shared  in  common  witli  him 
who  did,  the  imperfection  of  our  nature ; 
and  consequently  must  be  presumed 
just  as  liable  to  have  mistaken  tlie  cor- 
rect course.  The  test  of  responsibility, 
therefore,  should  be,  not  the  certainty 
of  wisdom  in  others,  but  the  possession 
of  ordinary  knowledge  ;  and  by  show- 
ing that  the  error  of  tlic  agent  is  of  so 
gross  a  kind,  that  a  man  of  common 
sense  and  ordinary  attention  would  not 
have  fallen  into  it.  The  rule  which 
fixes  responsibility,  because  men  of  un- 
erring sagacity  are  supposed  to  exist, 
and  would  have  been  found  by  the  prin- 
cipal, apj)ears  to  us  essentially  erro- 
neous." 

(s)  Wilson  V.  Brett,  11  M.  &  W.  113. 
This  was  an  action  on  the  case  for  neg- 
ligence in  riding  the  plaintiff's  horse. 
The  plaintiff  had  intrusted  the  horse  in 
question  to  the  defendant,  requesting 
him  to  ride  it  to  Beckham,  for  the  pur- 
pose of  showing  it  for  sale  to  a  Mr. 
Margetson.  The  defendant  rode  the 
horse  to  Beckham,  and  for  the  purpose 
of  showing  it,  took  it  into  the  East  Sur- 
rey race  ground,  where  I\Ir.  Margetson 
was  engaged  with  others  playing  the 
game  of  cricket ;  and  there,  in  conse- 
quence of  the  slippery  nature  of  the 
ground,  the  horse  slipped  and  fell  seve- 
ral times,  and  in  falling  broke  one  of 
his  knees.  It  was  proved  that  the  de- 
fendant was  a  person  conversant  with 

[609] 


590 


THE  LAW   OP  CONTRACTS. 


[book   III. 


SECTION  III. 


COMMODATUM. 


Where  a  thing  is  borrowed,  to  be  used  by  the  borrower, 
without  any  reward  or  compensation  to  be  received  by  the 
owner  from  him,  this  transaction  resembles  the  two  former,  in 
so  far  as  it  is  gratuitous.  But  it  is  unlike  them,  in  that  the 
benefit  belongs  exclusively  to  the  bailee  ;  and  he  is  therefore 
bound  to  great  care,  and  liable  for  slight  negligence,  (ss) 

What  constitutes  this  negligence,  or,  in  general,  what  are 
the  rules  which  belong  to  this  species  of  bailment,  we  cannot 
ascertain  to  any  great  extent  from  adjudicated  cases,  as 
there  are  few  or  none  which  distinctly  decide  such  questions. 
But  in  the  case  of  Coggs  v.  Bernard,  so  often  cited.  Holt 
lays  down  certain  principles,  which  he  takes  from  Bracton, 
who  borrows  them   from  the  civil  law.     Resting  upon  such 


and  skilled  in  horses.  Rolfe,  B.,  before 
whom  the  cause  was  tried,  told  the  jury 
that,  under  the  circumstances,  the  de- 
fendant, being  shown  to  be  a  person 
skilled  in  the  management  of  horses, 
was  bound  to  take  as  much  care  of  the 
horse  as  if  he  had  borrowed  it.  And  the 
Court  of  Exchequer  held  this  instruc- 
tion to  be  correct.  Parke,  B.,  said  :  — 
"  I  think  the  case  was  left  quite  coiTCCt- 
ly  to  the  jury.  The  defendant  was 
shown  to  be  a  person  conversant  with 
horses,  and  was  therefore  bound  to  use 
such  care  and  skill  as  a  person  con- 
versant with  horses  might  reasonably 
be  expected  to  use :  if  he  did  not,  he  was 
guilty  of  negligence.  The  whole  effect 
of  what  was  said  by  the  learned  judge 
as  to  the  distinction  between  this  case 
and  that  of  a  borrower,  was  this ;  that 
this  particular  defendant,  being  in  fact 
a  person  of  competent  skill,  was  in 
effect  in  the  same  situation  as  that  of  a 
borrower,  who  in  point  of  law  repre- 
sents to  the  lender  that  he  is  a  person 
of  competent  skill.  In  the  case  of  a 
gratuitous  bailee,  where  his  profession 
or  situation  is  such  as  to  imply  the  pos- 
session of  competent  skill,  he  is  equally 
liable  for  the  neglect  to  use  it."  Alder- 
son,  B.    "  The  learned  judge  thought, 

[610] 


and  correctly,  that  tliis  defendant  being 
shown  to  be  a  person  of  competent 
skill,  there  was  no  difference  between 
his  case  and  that  of  a  borrower ;  because 
the  only  difference  is,  that  there  the 
party  bargains  for  the  use  of  competent 
skill,  which  here  becomes  immaterial, 
since  it  appears  that  the  defendant  has 
it."  Bolfe,  B.  "  The  distinction  I  in- 
tended to  make  was,  that  a  gratuitous 
bailee  is  only  bound  to  exercise  such 
skill  as  he  possesses,  whereas  a  hirer  or 
borrower  may  reasonably  be  taken  to 
represent  to  the  party  who  lets,  or  from 
whom  he  borrows,  that  he  is  a  person 
of  competent  skill.  If  a  person  more 
skilled  knows  that  to  be  dangerous 
which  another  not  so  skilled  as  he  does 
not,  surely  that  makes  a  difference  in 
the  liability.  I  said  I  could  sec  no  dif- 
ference between  negligence  and  gross  neg- 
ligence —  that  it  was  the  same  thing, 
with  the  addition  of  a  vituperative  epi- 
thet." It  does  not  distinctly  appear  by 
the  report  of  this  case  whether  the  bail- 
or knew  that  the  bailee  possessed  su- 
perior skill  or  not.  We  think,  however, 
it  must  be  presumed  that  he  did  know 
it,  or  at  least  had  reason  to  suppose  that 
such  was  the  case.  See  ante,  p.  577,  n.  {v.) 
(ss)  Phillips  V.  Condon,  14  111.  84. 


CH.    XII.] 


BAILMENT. 


591 


authority,  and  also  upon  manifest  reason  and  justice,  they 
may  be  deemed  the  rules  of  law  on  this  subject;  and  we 
give  them  in  a  note  below,  in  the  words  of  Holt,  {t) 


*  SECTION  IV. 


PIGNUS. 


We  now  enter  upon  a  topic  of  more  interest,  inasmuch  as 
the  questions  which  belong  to  it  are  of  more  frequent  recur- 
rence. 

A  pledge  is  a  bailment  for  the  mutual  benefit  of  both  par- 
ties, for  while  the  pledgee  obtains  security  for  his  debt,  the 
pledgor  obtains  credit  or  delay,  or  other  indulgence.  The  bailee 
is  therefore  bound  only  to  ordinary  care,  and  is  liable  only 
for  ordinary  neglect.     If  the  pledge  be  lost  by  an  intrinsic  de- 


{t)  "  As  to  the  second  sort  of  bail- 
ment, viz.,  commodatum,  or  lending  gra- 
tis, the  borrower  is  bound  to  the  strict- 
est care  and  diligence,  to  keep  the  goods, 
80  as  to  restore  them  back  again  to  the 
lender,  because  the  bailee  has  a  benefit 
by  the  use  of  them,  so  as  if  the  bailee 
be  guilty  of  the  least  neglect,  he  will  be 
answerable ;  as  if  a  man  should  lend 
another  a  horse  to  go  westward,  or  for 
a  month ;  if  the  bailee  go  northward,  or 
keep  the  horse  above  a  month,  if  any 
accident  happen  to  the  horse  in  the 
northern  journey,  or  after  the  expiration 
of  the  month,  the  bailee  will  be  charge- 
able ;  because  he  has  made  use  of  the 
horse  contrary  to  the  trust  he  was  lent 
to  him  under,  and  it  may  be  if  the  horse 
had  been  used  no  otherwise  than  he 
was  lent,  that  accident  would  not  have 
befallen  him.  This  is  mentioned  in 
Bracton,  fol.  99  a;  his  words  are:  — 
Is  auteiii  cui  res  uliqua  utenda  datitr,  re 
ohligalur.  quae  commodata  est,  sed  magna 
differentia  est  inter  tnutuum  et  commoda- 
tum ;  quia  is  qui  rem  mutuam  accepit  ad 
ipsam  rcstituendam  tenetur,  vel  ejus  pre- 
hum,  SI  forte  incendio,  ruina,  nuuj'ragio, 
aut  latru/iuvivel  hostium  incursu,  consump- 
tafuerit,  vel  deperdita,  substracta,  vel  ahla- 
ta.  Et  qui  rem  utendam  accepit,  non  suf- 
ficit  ad  rei  custodiam,  quod  talem  diligcn- 
tiam  adhibcat,  qualem  suis  rebus  propriis 


adhibere  solet,  si  alius  earn  diligentius  po- 
tuit  custodire  ;  ad  vim  autem  majorem  vel 
casus  fortuitos  non  tenetur  quis,  nisi  culpa 
sua  inlervenerit.  Ut  si  rem  sibi  commo- 
datam  domi,  secum  detulerit  cum  pere- 
gre  profectus  faerit,  et  ilium  incursu  hos- 
tium vel  prcedonum  zel  naufragio  amiserit, 
non  est  dubium  quin  ad  rei  restitutionem 
teneatw.  I  cite  this  author,  though  I 
confess  he  is  an  old  one,  because  his 
opinion  is  reasonable,  and  very  much 
to  my  present  purpose,  and  thei'e  is  no 
authority  in  the  law  to  the  contrary. 
But  if  the  bailee  put  this  horse  in  his 
stable,  and  he  were  stolen  from  thence, 
the  bailee  shall  not  be  answerable  for 
him.  But  if  he  or  his  servants  leave 
the  house  or  stable  doors  open,  and  the 
thieves  take  the  opportunity  of  that, 
and  steal  the  horse,  he  will  be  charge- 
able ;  because  the  neglect  gave  the 
thieves  the  occasion  to  steal  the  horse. 
Bracton  says,  the  bailee  must  use  the 
utmost  care,  but  yet  he  shall  not  be 
chargeable  where  there  is  such  a  force 
as  he  cannot  resist."  See  also  Scran- 
ton  V.  Baxter,  4  Sandford,  5,  2  Ld. 
Eaym.  915.  A  gratuitous  loan  is  con- 
sidered as  strictly  a  personal  trust, 
unless  from  other  circumstances  a  dif- 
ferent intention  can  fairly  be  presumed. 
This  is  well  illustrated  by  the  case  of 
Bringloc  v.  Morrice,  1  Mod.  210.     That 

[611] 


592* 


THE   LAW   OP   CONTRACTS. 


[book   III. 


feet,  which  might  possibly  have  been  remedied,  or  by  a  easu- 
alty  which  might  possibly  have  been  prevented,  cTi*  by  supe- 
rior force  which  might  possibly  have  been  resisted,  the  bailee 
is  still  not  responsible,  unless  he  was  in  positive  default,  (u) 
*He  has  a  special  property  in  the  pledge  ;  and  may  main- 
tain any  action,  which  requires  such  property  in  the  plaintiff, 
against  a  third  party,  for  an  injury  to  the  pledge  ;  (v)  and  a 


was  an  action  of  trespass  for  immode- 
rately riding  the  plaintiff's  mare.  The 
defendant  pleaded  that  the  plaintiff  l(?nt 
him  the  mare,  and  gave  him  license  to 
ride  her,  and  that  by  virtue  of  this  li- 
cense the  defendant  and  his  servant  had 
ridden  the  mare  alternately.  The  plain- 
tiff' demurred  to  the  plea.  And,  per 
curiam,  "  The  license  is  annexed  to  the 
person,  and  cannot  be  communicated  to 
another;  for  this  riding  is  a  matter  of 
pleasure."  And  North,  C.  J.,  took  a 
difference,  where  a  certain  time  is  limit- 
ed for  the  loan  of  the  horse,  and  where 
not.  In  the  first  case,  the  party  to 
whom  the  horse  is  lent  hath  an  interest 
in  the  horse  during  that  time,  and  in 
that  case  his  servant  may  ride,  but  in 
the  other  case  not.  A  difference  was 
also  taken  betwixt  hiring  a  horse  to  go 
to  York,  and  borrowing  a  horse ;  in  the 
first  place,  the  party  may  let  liis  ser- 
vant ride ;  in  the  second  not.  But 
where  a  horse  was  for  sale,  and  the 
agent  of  the  vendor  let  A.  have  the 
horse  for  the  purpose  of  trying  it,  A. 
was  held  justified  in  putting  a  compe- 
tent person  upon  the  horse  to  try  it,  an 
authoritv  to  do  so  being  implied.  Lord 
Camoys"v.  Scurr,  9  C.  &  P.  38.3. 

(u)  Commercial  Bank  v.  Martin,  1 
Louis.  An.  Rep.  344.  In  this  case  the 
court  say  a  pledgee  is  bound  to  take 
that  care  of  tlie  property  pledged  which 
a  prudent  person  {dili gens  pater  familias) 
would  take  of  his  own.  But  he  is  not 
bound  to  use  the  utmost  diligence.  And 
where  it  becomes  necessary  for  a 
pledgee,  in  the  exercise  of  the  diligence 
required  of  him,  to  employ  an  agent  on 
account  of  his  particular  profession  and 
skill,  he  will  not  be  responsible  for  the 
misconduct  or  neglect  of  the  latter, 
where  reasonable  care  was  shown  in 
the  choice  of  the  agent,  as  to  his  skill 
and  ability.  See  also  Exeter  Bank  r. 
Gordon,  8  New  Hamp.  66 ;  Goodall  v. 
Eichardson,  14  New  Hamp.  567.  The 
general  rule  of  law,  where  a  person  re- 

[612] 


ceives  bonds  or  notes  for  collection,  as 
collateral  security  for  a  debt,  is  that  he  is 
bound  to  use  due  diligence  ;  and  if  they 
are  lost  through  his  negligence,  by  the 
insolvency  of  the  makers,  he  is  charge- 
able with  the  amount.  Noland  v. 
Clark,  10  B.  Monr.  239, 

(r)  It  is  also  decided  in  the  case  of 
Gibson  v.  Boyd,  1  Kerr's  N.  B.  Rep. 
150,  that  an  action  will  lie  in  favor  of 
the  pawnee  against  the  general  owner, 
when  the  rights  of  the  former  are  in- 
vaded by  the  latter.  That  was  an  action 
of  replevin  for  a  mare.  It  appeared 
that  the  mare  in  question  was  tlie  pro- 
perty of  the  defendant,  and  had  been 
delivered  by  him  to  the  plaintiff  as  a 
pledge.  The  defendant  afterwards  took 
the  mare  from  the  plaintiff's  possession, 
whereupon  the  plaintiff  brought  this 
action,  and  the  court  held  that  he  was 
entitled  to  recover.  Chipman,  C.  J., 
said  :  —  "  This  is  an  action  of  replevin 
for  a  mare,  in  which  the  defendant 
pleaded  property  in  himself,  and  also 
property  in  a  third  person  ;  and  the 
plaintiff  replied  to  each  plea  that  the 
property  was  in  himself;  upon  which 
issue  was  taken.  From  the  testimony 
in  the  case,  it  appeared  that  the  mare 
belonged  to  the  defendant,  and  was  de- 
livered to  the  plaintift"as  a  security  for  a 
debt  due  from  the  defendant  to  the  plain- 
tiff: the  contract  between  them  therefore 
was  clearly  that  of  a  pawn  or  pledge ;  and 
the  defendant  and  plaintiff  stood  in  the 
situation  of  pawnor  and  pawnee.  In 
tliis  state  of  things  the  defendant  took 
the  mare  from  the  plaintiff.  It  is  now 
contended  on  the  part  of  the  defendant, 
that  he  being  the  general  owner  of  the 
mare,  the  plaintiff  cannot  maintain  this 
action  of  replevin  against  him.  It  is 
admitted  to  be  clear  law  that  the 
pawnee  may  maintain  replevin  against 
a  stranger,  and  tlie  right  to  retain  the 
thing  pawned,  until  the  debt  is  paid, 
cannot  be  perfect  unless  this  right  of 
possession  is  indefeasible,  and  not  liable 


CH.  XII.]  BAILMENT.  *  593 

judgment  in  such  action  brought  by  the  pledgee  or  by  the 
pledgor  would  bar  an  action  for  the  same  cause  by  the  other 
party,  (w) 

He  has  generally  only  a  right  to  hold ;  and  if  he  uses,  it  is 
at  his  own  peril ;  and  he  is  liable  for  any  loss  which  occurs 
while  using.  If  he  derive  a  profit  from  this  use,  he  must 
allow  for  it ;  unless  this  use  was  equally  profitable  to  the 
owner.  If  the  pledge  be  a  horse,  the  bailee  may  use  it  enough 
to  keep  the  horse  in  health,  without  paying  for  this  use ;  but 
*if  he  take  a  journey  with  it  he  must  pay.  He  may  milk  a 
cow ;  and  indeed  ought  to,  because  not  to  milk  her  would 
injure  the  owner,  by  hurting  the  cow;  nevertheless  he  must 
account  for  the  milk,  because  he  derives  a  positive  profit  from 
it.  The  question  of  use  sometimes  resolves  itself  into  more 
or  less  of  resulting  injury  ;  thus,  he  may  use,  carefully,  books, 
although  perhaps  any  use  of  them  implies  some  slight  injury  ; 
but  not  clothes,  for  these  are  more  rapidly  worn  out,  and  neces- 
sarily more  injured  by  use.  (x)  But  even  if  he  use  the  pawn 
tortiously,  he  is  only  liable  to  an  action ;  his  lien  upon  it 
not  being  thereby  terminated,  (y) 

In  all  cases  the  pledgee  must  account  for  income  or  pro- 
fits derived  from^the  pledge ;  and  where  he  is  put  to  expense 
or  extraordinary  trouble  to  preserve  the  value  of  the  pledge, 

to  be  invaded  or  interfered  with  by  the  the  worse,  as  if  jewels  for  the  purpose 
debtor,  although  he  be  the  general  own-  were  pawned  to  a  lad}*,  she  might  use 
er  of  the  thing  pawned.  The  fallacy  them.  But  then  she  must  do  it  at  her 
of  the  argument  on  the  part  of  the  de-  peril,  for  whereas  if  she  keeps  them 
fendant  appears  to  lie  in  the  extent  of  locked  up  in  her  cabinet,  if  her  cabinet 
signification  given  to  the  term  '  general  should  be  broke  open,  and  the  jewels 
owner.'  He  remains  the  general  owner,  taken  from  thence,  she  would  be  ex- 
subject  to  the  right  of  the  pawnee ;  he  cused  ;  if  she  wears  them  abroad,  and 
has  parted  with  his  absolute  right  of  is  there  robbed  of  them,  she  will  be  an- 
disposing  of  the  chattel  until  he  has  re-  swerable.  And  the  reason  is,  because 
deemed  it  from  its  state  of  pledge.  .  .  .  the  pawn  is  in  the  nature  of  a  deposit, 
There  cannot,  I  conceive,  be  a  particle  and  as  such  is  not  liable  to  be  used, 
of  doubt  that  this  action  is  maintaina-  And  to  this  effect  is  Ow.  123.  But  if 
ble."  the  pawn  be  of  such  a  nature  as  the 

(w)  48  Ed.  3,  20  b,  pi.  8 ;  20  H.  7,  pawnee  is  at  any  charge  about  the  thing 

5  b,  pi.  15  ;  Flewellin  v.  Rave,  1  Bulst.  pawned,  to  maintain  it,  as  a  horse,  cow, 

68.  &c.,  then  the  pawnee  may  use  tlie  horse 

(x)  In  Coggs  V.  Bernard,  Lord  IJolt  in  a  reasonable   manner,   or   milk   the 

makes  the  following  remarks  upon  the  cow,  &c.,  in  recompense  for  the  meat." 

right  of  tlic  pledgee  to  use  the  pledge  See  also  Mores  v.  Conliam,  Owen,  123; 

while  in  his  possession:  —  "If  the  jiawn  Anonymous,  2   Salk.  522;  Thompson 

be  such  as  it  will  be  the  worse  for  using,  r.  Patrick,  4  Watts,  414. 
the  pawnee  cannot  use   it,  as   clothes,         (y)  Thompson  r.   Patrick,  4  Watts, 

&c.,  but  if  it  be  such  as  Mill  be  never  414. 

VOL.  I.  52  [613] 


594  *  THE  LAW   OF   CONTRACTS.  [BOOK  III. 

he  may  charge  the  owner  for  it,  unless  there  be  a  bargain  to 
the  contrary,  or  the  nature  of  the  case  negatives  his  right  to 
make  such  charge. 

If  the  pledge  be  stolen  from  him  he  is  not  liable,  unless 
the  theft  arose  from  or  was  connected  with  a  want  of  ordi- 
nary care  on  his  part,  (z)  By  the  civil  law,  the  theft  raised 
the  presumption  of  neglect,  and  the  bailee  was  responsible 
unless  he  could  show  an  absence  of  negligence  on  his  part. 
We  doubt  whether  this  be  the  rule  of  the  common  law.  If 
the  pledge  be  stolen,  the  theft  does  not  of  itself  discharge  the 
*  bailee  ;  but  the  bailor  may  make  him  responsible  by  showing 
that  it  happened  through  a  want  of  ordinary  care. 

By  the  civil  law,  in  the  case  of  pig-nus,  the  possession  of 
the  thing  pledged  passed  to  the  creditor ;  in  the  case  of  hy- 
potheca,  the  possession  of  the  thing  hypothecated  remained 
with  the  owner.  This  distinction  has  not  been  deemed  of 
great  importance  in  England,  and  the  difference  between  a 
pledge  and  a  mortgage  has  not  until  lately  been  strongly 
marked.  In  recent  times,  however,  and  in  this  country,  this 
distinction  is  assuming  a  new  importance.  In  all  our  com- 
mercial cities,  the  pledging  of  personal  property,  especially  of 
stocks,  has  become  very  common,  and  repent  cases  have 
established,  or  at  least  affirmed,  rights  and  liabilities  peculiar 
to  such  contract,  and  quite  different  from  those  which  attend 
a  mortgage,  (a) 

(2)    Sir  William  Joneses    distinction  the  points  raised  in  the  cause.    How 

(EssayonBailments,  75,)  between  clan-  my  opinion  got  into   print  I   do  not 

destine   theft  and  violent  theft,  taken  know.     It  was  probably  lent  to  some  of 

from  the  civil  law,  is  not  sustained  by  the  bar,  and  a  copy  taken,  which  the 

common  law  authorities.     See  Co.  Litt.  reporter  has  eri'oneously  published  as 

89  a;  Southcote's  case,  4  Co.  83  b.  the  opinion  of  this  court."     This  cir- 

(a)  In  Cortelyou V.Lansing,  2  Caines'  cumstance  may  lessen  its  authority. 
Cas.  in  Error,  200,  the  distinction  be-  But  as  Chancellor  Kent  has  referred  to 
tween  a  pledge  and  a  mortgage,  and  the  it  in  his  Commentaries,  we  venture  to 
peculiar  qualities  of  a  pledge,  are  very  do  so  also.  Whatever  be  its  authority, 
fully  and  ably  considered.  In  Barrow  of  its  instructiveness  there  can  be  no 
V.  Paxton,  5  Johns.  260,  the  case  of  doubt.  The  leai-ned  judge  says  :  — 
Cortelyou  v.  Lansing  being  cited  by  "  The  note  in  question  came  under  the 
counsel,  Kent,  C.  J.,  said:  —  "That  strict  definition  of  a  pledge.  It  was  de- 
case  was  never  decided  by  this  court.  It  livered  to  the  defendant,  M'ith  a  right  to 
was  argued  once,  and  I  had  prepared  detain  as  a  security  for  his  debt,  but 
the  written  opinion  which  appears  in  the  legal  property  did  not  pass,  as  it 
the  report  of  Mr.  Caines  ;  but  the  court  does  in  the  case  of  a  mortgage,  with  a 
directed  a  second  argument,  which,  for  condition  of  a  defeasance.  The  gene- 
some  reason  or  other,  was  never  brought  ral  ownership  remained  with  the  intes- 
on,  so  that  no  decision  took  place  on  tate,  and  only  a  special  property  passed 

[614] 


CH.  XII.]  BAILMENT.  *595 

It  was  undoubtedly  a  rule  of  the  ancient  common  law  of 
England  that  delivery  was  essential  to  a  pledge ;  and  the 
*  difference  between  a  pledge  and  a  mortgage  consisted  in  this  : 
The  possession  of  the  pledge  passed  to  the  pledgee,  but  the 
property  did  not  pass  ;  a  thing  mortgaged  might  remain  in 
the  possession  of  the  mortgagor,  but  the  right  of  property 
passed  to  the  mortgagee.  The  pledgee  held  the  pledge  until 
his  debt  was  paid,  the  pledge  itself  remaining  the  property  of 
the  pledgor.  The  mortgagee  acquired  the  property  of  the 
thing  mortgaged,  the  mortgagor  parting  with  the  property  as 
in  the  case  of  a  sale,  reserving  only  the  right  to  defeat  the 
transfer  and  re-acquire  the  property  by  paying  the  debt.  But 
this  distinction  has  not  always  been  recognized,  or,  at  least, 
not  accurately  observed.  It  seems,  however,  to  be  now  held, 
that  possession  of  a  pledge  must  be  delivered  to  the  pledgee ;  (b) 
that  this  possession  may  be  according  to  the  nature  of  the 
thing,  and  where  the  pledge  does  not  permit  of  manual  de- 
livery, but  consists  of  stocks,  which  are  transferred  upon  the 
books  of  the  company  with  issue  of  a  new  certificate,  if  the 
transfer  be  to  secure  a  debt,  and  the  debtor  has  a  right  to  the 
restoration  of  the  property  on  payment  of  the  debt  at  any 
time,  the  transaction  is  a  pledge  and  not  a  mortgage,  although 
the  legal  title  passes  to  the  creditor.  This  is  a  very  nice,  and 
perhaps  a  difficult  distinction ;  but  as  a  consequence  of  it,  it 
is  held  that  the  creditor  takes  the  stock  only  to  hold,  and  not 
to  use ;  that  the  property  is  not  in  him ;  that  he  cannot  sell 
the  stock  until  the  debt  is  due,  and  that  if  it  be  payable  on 


to  the  defendant.     It  is,  therefore,  to  be  case,  Marvin,  J.,  said  :  —  "A  mortgage 

distinguished  from  a  mortgage  of  goods,  is  a  sale  of  goods,  with  a  condition  that 

for  that  is  an  absohitc  pledge,  to  become  if  the  mortgagor  performs  some  act  it 

an  absolute  interest  if  not  redeemed  at  shall  be  void.     If  the  condition  is  not 

a  fixed  time.     Besides,  delivery  is  es-  performed,  the  goods  become  the  ahso- 

sential  to  a  pledge ;  but  a  mortgage  of  lute   property  of  the   mortgagee.    Be- 

goods  is,  in  certain  cases,  valid  without  fore  the  happening  of  the  contingency, 

delivery.     The  mortgage  and  the  pledge  upon  which  the  title  is  to  be  defeated 

or  pawn  of  goods  seem,  however,  gene-  or  become  absolute,  the  possession   of 

rally  to  have  been  confounded   in   the  the  goods  may  be  in  the  mortgagor  or 

books,  and  it  was  not  until  lately  that  the  mortgagee."    In  the  case  of  a  pledge, 

this  just  discrimination  has  been  well  the  property  must  be  delivered  to  the 

attended  to  and  explained."     See  also  pawnee.     This  is  of  the  very  essence  of 

Homes  v.  Crane,  2  Pick.  607  ;  Jones  v.  a  pledge." 

Smith,  2  Ves.  Jr.  372,  378 ;  Brownell        (6)  See  the  cases  cited  in  the  preced- 

V.  Hawkins,  4  Barb.  491.     In  this  last  ing  note. 

[615] 


-595 


THE  LAW   OP   CONTRACTS. 


[book  III 


demand,  or  payable  presently  without  demand,  he  cannot 
sell  until  demand,  even  if  it  was  agreed  between  the  parties 
that  he  might  sell  without  notice  to  the  debtor ;  that  if  he 
sells,  trover  may  be  maintained  against  him  by  the  debtor, 
as  for  a  wrongful  conversion,  although  the  debt  be  not  paid. 
As  to  the  damages,  it  seems  that  the  debtor  may  recover,  if 
the  stocks  had  risen  in  value,  that  enhanced  value.  Whether, 
if  the  stocks  had  risen  and  fallen,  the  debtor  is  limited  to  the 
value  at  the  time  of  the  unauthorized  sale,  or  may  have  the 
highest  value  down  to  the  time  of  trial,  is  not  certainly  de- 
cided; but  it  seems  that  he  may  have  the  highest  value,  (c) 


(c)  All  these  points  were  elaborately 
considered  in  the  late  case  of  Wilson  v. 
Little,  1  Sandf.  351,  2  Comst.  443.  It 
was  an  action  on  the  case  for  not  re- 
turning stock  pledged,  and  for  unlaw- 
fully selling  the  same.  The  case  came 
on  originally  in  the  Superior  Court  of 
the  city  of  New  York,  and  was  tried  be- 
fore Sandford,  J.  It  appeared  that  on 
the  20th  of  December,  1845,  the  plain- 
tiff borrowed  of  the  defendant  the  sum 
of  $2,000,  and  gave  his  promissory  note 
therefor,  payable  presently.  The  plain- 
tiff at  the  same  time  transferred  to  the 
defendant  fifty  shares  of  the  consolida- 
ted capital  stock  of  the  New  York  and 
Erie  Rail  Road  Company.  The  trans- 
fer was  made  on  the  books  of  the  cor- 
poration, where  it  was  standing  in  the 
plaintiff's  name,  and  was  absolute  in 
its  terms.  In  the  note,  however,  given 
by  plaintiff  to  defendant,  the  stock  was 
mentioned  as  having  been  deposited 
with  defendant  "  as  collateral  security," 
with  authority  to  sell  the  same,  on  the 
non-performance  of  the  promise  con- 
tained in  the  note,  without  notice  to  the 
plaintiff.  Afterwards,  and  between  the 
23d  of  December  and  the  3d  of  Janu- 
ary, following  the  date  of  the  loan,  the 
plaintiff's  agent  applied  to  the  defend- 
ant several  times,  to  repay  the  loan,  and 
have  tbe  stock  retransferred.  The  de- 
fendant did  not  comply  with  his  request, 
and  it  afterwards  appeaixd  that  he  had 
sold  the  plaintiff's  stock  on  the  24th  or 
25th  of  December.  Between  the  23d 
of  December  and  the  3d  of  January,  the 
market  va  lue  of  the  stock  in  question  rose 
from  abo  ut  sixty-eight  dollars  per  share 
to  eighty -five  dollars  per  share.  On  these 


facts  a  verdict  was  taken  for  the  plain- 
tiff, subject  to  the  opinion  of  the  court. 
The  court  held,  1.  That  the  defendant 
had  no  right  to  sell  the  stock  until  he 
had  first  demanded  payment  of  the 
plaintiff.  2.  That  the  measure  of  da- 
mages was  the  value  of  the  stock  on  the 
3d  of  January.  Upon  the  first  point, 
Vanderpoel,  J.,  delivering  the  opinion 
of  the  court,  said:  —  "The  defendant 
held  the  stock  in  question  as  pledgee. 
It  was  pledged  to  secure  the  payment 
of  a  note  of  $2,000,  payable  on  demand. 
A  pledgee  cannot  dispose  of  the  pledge, 
until  the  pledgor  has  failed  to  comply 
with  his  engagements.  If  the  pledgee 
sells  the  pledge  without  authority,  it  is 
a  violation  of  his  trust.  It  is  here  con 
tended,  that  as  the  note  was  payable  on 
demand,  the  plaintiff  was  in  default  for 
not  paying  it  the  moment  the  note  was 
given,  and  that  the  pledgee,  before  sell- 
ing the  stock,  was  not  bound  to  de- 
mand the  amount  loaned.  The  cases 
of  sale  by  the  pledgee,  to  be  found  in 
the  books,  are  generally  those  where 
notes  were  payable  at  a  future  day,  and 
where  the  pledgee  sold  the  thing  pledg- 
ed, before  the  notes  matured.  There 
the  pledgee  was  clearly  in  the  M'rong  ; 
for  the  pledgor  had  not  failed  to  com- 
ply with  his  engagement.  Where  stock 
or  other  property  is  pledged  as  collate- 
ral security,  to  secure  the  payment 
of  a  note  payable  on  demand,  can  the 
pledgee  proceed  to  sell  immediately, 
without  first  demanding  the  amount  of 
the  note  1  This,  in  the  absence  of  ju- 
dicial authority,  would,  to  our  minds, 
be  repugnant  to  the  fair  import  and 
spirit  of  the  contract."    After  a  careful 


CH.   XII.] 


BAILMENT. 


596 


In  this  power  of  disposal,  the  mortgagee  differs  greatly  from 
a  pledgee.     For  it  is  every  day's  practice  for  a  mortgagee  to 


examination  of  the  authorities,  the 
learned  judge  continues:  —  "It  may 
then  be  safely  assumed,  that  where  an 
article  is  pledged  to  secure  a  debt,  pay- 
able on  demand,  the  pledgee  cannot 
sell,  without  first  demanding  payment 
of  the  debt  on  demand.  A  contrary 
rule  would,  in  its  practical  operation, 
be  wholly  destructive  to  the  existence 
of  a  general  property  in  the  pawnor. 
Eveiy  vestige  of  the  pawnor's  interest 
in  the  pledge  might  be  destroyed,  (and 
that  too  without  liis  knowledge,)  within 
an  hour  after  the  pawnee  is  clothed 
with  his  mere  special  property."  In 
reference  to  the  measure  of  damages, 
the  learned  judge  said:  —  "It  is  con- 
tended that  in  trover  the  true  measure 
of  damages  is  the  value  of  the  property 
at  the  time  of  its  conversion,  which,  as 
the  defendant  contends,  was  on  the  27th 
of  December,  wlien  the  stock  ranged  in 
the  market  from  &1^  to  68  per  cent. 
But  the  present  is  not  in  form,  nor  in- 
deed is  it  in  substance,  an  action  of  trover. 
It  is  a  special  action  on  the  case,  and  I 
cannot  imagine  why  assumpsit  could  not 
also  have  been  maintained,  for  not  re- 
turning to  the  plaintiff  his  stock,  after 
tender  to  the  defendant  of  the  amount 

for  which  it  was  pledged 

This  not  being  an  action  of  trover,  the 
true  measure  of  damages  is  the  value  of 
the  stock  on  the  3d  of  January,  when 
stock  was  sold  for  $85  per  share.  On 
that  daj'  the  final  interview  took 
place  between  the  defendant  and  Mr. 
Cutting,  the  agent  of  the  plaintitF.  The 
defendant's  offor  and  conversation  on 
that  day  may  be  regarded  as  consti- 
tuting the  final  breach.  But  if  it  were 
otherwise,  had  tlie  breach  occurred  ear- 
lier, the  rule  of  damages  would  have 
been  the  highest  value  of  the  stock 
between  the  actual  refusal  of  the  de- 
fendant to  return  the  same,  on  being  of- 
fered tlie  amount  for  which  it  was  pledg- 
ed, and  the  commencement  of  the  suit." 
A  question  was  made  also  as  to  wlie- 
ther  the  plaintiff  should  have  tendered 
to  the  defendant  the  amount  due  him 
before  bringing  his  action.  Tlie  court, 
however,  were  of  opinion  that  the  evi- 
dence proved  that  a  tender  was  made, 
and  so  this  point  was  not  passed  upon. 
The  case  was  afterwards  carried  up  to 
the  Court  of  Appeals.    In  that  court  a 

52* 


question  was  raised  which  had  not  been 
suggested  in  the  court  below,  namely, 
whether  the  transaction  in  question  did 
not  amount  to  a  mortgage  instead  of  a 
pledge,  on  the  ground  tluit  the  legal 
title  to  the  stock  became  vested,  by  the 
transfer,  in  the  defendant.  Upon  this 
part  of  the  case,  Ruygles,  J.,  delivering 
the  opinion  of  the  court,  said  :  —  "It  is 
contended,  on  the  part  of  the  defend- 
ant, that  the  transaction  was  a  mort- 
gage and  not  a  pledge ;  that  the  money 
was  payable  immediately,  and  the  stock 
became  absolutely  the  property  of  the 
appellant,  and  was  only  redeemable  in 
equity.  If  this  be  true,  the  Supreme 
Court  and  the  court  for  the  correction 
of  errors  must  have  rendered  their  judg- 
ments in  the  case  of  Allen  v.  Dykers,  3 
Hill,  593,  7  Id.  498,  upon  a  mistaken 
view  of  the  law.  In  that  case,  as  in  the 
present,  there  was  a  loan  of  money,  a 
promissory  note  for  the  payment  of  the 
amount,  in  which  it  was  stated  that  the 
borrower  had  deposited  with  the  lend- 
ers, as  collateral  security,  with  author- 
ity to  sell  the  same  on  the  non-perform- 
ance of  the  promise,  250  shares  of  a 
stock  therein  mentioned.  The  money 
in  that  case  was  payable  in  sixty  days  — 
the  sale  was  to  be  made  at  the  board  of 
brokers,  and  notice  waived  if  not  paid 
at  maturity.  The  stock  was  assigned 
to  the  lenders  of  the  money,  and  the 
transfer  entered  on  the  books  of  the 
company,  on  the  day  the  note  was 
given.  With  respect  to  the  question 
whether  tlie  stock  was  mortgaged  or 
pledged,  I  can  perceive  no  difference 
between  that  case  and  the  present.  The 
question  does  not  appear,  by  the  report 
of  that  case,  to  have  been  raised.  It 
would  have  been  a  decisive  point,  for  if 
it  had  been  a  mortgage,  and  not  a 
pledge,  the  plaintiff  must  iiave  failed. 
Tiie  sale  of  the  stock  in  that  case,  by  the 
lender,  before  the  maturity  of  tlie  note, 
did  not  make  it  tlic  less  decisive.  If 
there  had  been  good  ground  for  saying, 
in  Allen  v.  Dykers,  that  tlie  stock  was 
morUjMjed  and  not  pledfjed.  it  is  not  to 
be  believed  that  it  would  have  escaped 
the  attention  of  the  eminent  counsel 
who  argued  the  cause,  antl  of  botli  the 
courts  ;  and  on  examining  the  question, 
I  am  satisfied  that  if  the  point  had  been 
taken  it  would  have   been   overruled. 

[617] 


597 


THE   LAW   OF   CONTRACTS. 


[book   III. 


sell  his  mortgage,  and  this  sale  transfers  the  right  of  property 
from  himself  to  the  purchaser,  subject  to  the  redemption  of 


The  argument  of  the  defendant  in  this 
case  is  founded  on  the  assumption  that 
when  personal  things  are  pledged  for 
the  payment  of  a  debt,  the  general  pro- 
perty and  tlie  legal  title  always  remains 
in  the  pledgor ;  and  that  in  all  cases 
where  the  legal  title  is  transferred  to 
the  creditor,  the  transaction  is  a  mort- 
gage and  not  a  pledge.  This,  however, 
is  not  invariably  true.  But  it  is  true 
that  possession  must  uniformly  accom- 
pany a  pledge.  The  right  of  the  pledgee 
cannot  otherwise  be  consummated. 
And  on  this  ground  it  has  been  doubted 
whether  incorporeal  things  like  debts, 
money  in  stocks,  &c  ,  which  cannot  be 
manually  delivered,  were  the  proper 
subjects  of  a  pledge.  It  is  now  held 
that  they  are  so ;  and  there  seems  to  be 
no  reason  why  any  legal  or  equitable 
interest  whatever  in  personal  property 
may  not  be  pledged ;  provided  the  in- 
terest can  be  put,  by  actual  delivery  or 
by  written  transfer,  into  the  hands  or 
within  the  power  of  the  pledgee,  so  as 
to  be  made  available  to  him  for  the 
satisfaction  of  the  debt.  Goods  at  sea 
may  be  passed  in  pledge  by  a  transfer 
of  the  muniments  of  title,  as  by  a  writ- 
ten assignment  of  the  bill  of  lading. 
This  is  equivalent  to  actual  possession, 
because  it  is  a  delivery  of  the  means 
of  obtaining  possession.  And  debts 
and  choses  in  action  are  capable,  by 
means  of  a  written  assignment,  of  being 
conveyed  in  pledge.  The  capital  stock 
of  a  corporate  company  is  not  capable 
of  manual  delivery.  The  scrip  or  cer- 
tificate may  be  delivered,  but  that  of 
itself  does  not  carry  with  it  the  stock- 
holder's interest  in  the  corporate  funds. 
Nor  does  it  necessarily  put  that  interest 
under  the  control  of  the  pledgee.  The 
mode  in  which  the  capital  stock  of  a 
corporation  is  transferred  usually  de- 
pends on  its  by-laws.  It  is  so  in  the 
case  of  the  New  York  and  Erie  Rail 
Road  Company.  The  case  does  not 
show  what  the  by-laws  of  that  coi-pora- 
tion  were.  It  maybe  that  nothing  short 
of  the  transfer  of  the  title  on  the  books 
of  the  company  would  have  been  suffi- 
cient to  give  the  defendants  the  absolute 
possession  of  the  stock,  and  to  secure 
them  against  a  transfer  to  some  other 
person.  In  such  case  the  transfer  of  the 
legal  title  being  necessary  to  the  change 

[618] 


of  possession,  is  entirely  consistent  with 
the  pledge  of  the  goods.  Indeed  it  is  in 
no  case  inconsistent  with  it,  if  it  appears 
by  the  terms  of  the  contract  that  the 
debtor  has  a  legal  right  to  the  restora- 
tion of  the  pledge  on  payment  of  the 
debt  at  any  time,  although  after  it  falls 
due,  and  before  the  creditor  has  exer- 
cised the  power  of  sale.  Reeves  v.  Cap- 
per, 5  Bing.  N.  C.  136,  was  a  case  in 
which  the  debtor  'made  over'  to  the 
creditor,  '  as  his  property,'  a  chronome- 
ter, until  a  debt  of  ^50  should  be  repaid. 
It  was  held  to  be  a  valid  pledge.  la 
the  present  case,  the  note  for  the  repay- 
ment of  the  loan  and  the  transfer  of  the 
stock  were  parts  of  the  same  transaction, 
and  are  to  be  construed  together.  The 
transfer,  if  regarded  by  itself,  is  absolute, 
but  its  object  and  character  is  qualified 
and  explained  by  the  cotemporaneous 
paper  whicli  declares  it  to  be  a  deposit 
of  the  stock  as  collateral  security  for 
the  payment  of  $2,000,  and  there  is 
nothing  in  the  instrument  to  work  a 
forfeiture  of  the  right  to  redeem  or 
otherwise  to  defeat  it,  except  by  a  law- 
ful sale  under  the  power  expressed  in 
the  paper.  The  general  property  which 
the  pledgor  is  said  usually  to  retain,  is 
nothing  more  than  a  legal  right  to  the 
restoration  of  tlie  tiling  pledged,  on  pay- 
ment of  the  debt.  Upon  a  fair  con- 
struction of  the  note  and  the  transfer 
taken  togetlier,  this  right  was  in  the 
plaintiff,  unless  it  was  defeated  by  the 
sale  which  the  defendant  made  of  the 
stock.  In  every  contract  of  pledge  there 
is  a  right  of  redemption  on  the  part  of 
the  debtor.  But  in  this  case  that  right 
was  illusory  and  of  no  value,  if  the 
creditor  could  instantly,  without  demand 
of  payment  and  without  notice,  sell  the 
thing  pledged.  "We  are  not  required  to 
give  the  transaction  so  unreasonable  a 
construction.  The  borrower  agreed  that 
the  lender  might  sell  without  notice,  but 
not  that  he  might  sell  without  demand 
of  payment,  which  is  a  difi'erent  thing. 
The  lender  might  have  brought  his  ac- 
tion immediately,  for  the  bringing  an  ac- 
tion is  one  way  of  demanding  payment ; 
but  selling  without  notice  is  not  a  de- 
mand of  payment ;  and  it  is  well  settled 
that  where  no  time  is  expressly  fixed 
by  contract  between  the  parties,  for  the 
payment  of  a  debt  secured  by  a  pledge, 


CH.   XII.] 


BAILMENT. 


598-*  599 


the  mortgagor.  But  the  pledgee,  having  only  the  possession 
and  not  the  property,  cannot  transfer  the  property;  and  hold- 
ing only  for  security,  cannot  sell  until  the  debt  becomes  due 
and  is  unpaid. 

*  Where  stock  was  pledged  to  a  stock -broker,  and  a  note 
given  with  it,  stating  that  the  stock  was  deposited  as  colla- 
teral security,  with  authority  to  sell  the  same  at  the  board  of 
brokers,  if  the  note  was  not  paid  at  maturity,  evidence  was 
offered  of  an  uniform  usage  of  brokers  to  dispose  of  stock  so 
pledged  at  their  pleasure,  and  at  any  time,  before  or  after  the 
maturity  of  the  note,  and  when  the  debt  was  paid,  return 
an  equal  number  of  shares  of  the  same  kind ;  but  this  evi- 
dence was  rejected  as  contrary  to  the  law  regulating  these 
transactions,  and  inconsistent  with  the  express  terms  of  the 
contract,  (d)  Nor  could  the  broker,  in  any  event,  sell  the 
stock  secretly,  but  only  at  the  board  of  brokers,  and  openly, 
stating  how  it  was  held,  (e) 


the  pawnee  cannot  sell  the  pledge  with- 
out a  previous  demand  of  payment,  al- 
though the  debt  is  technically  due  im- 
mediately." As  to  a  tender  by  the  plain- 
tiff to  the  defendant  of  the  debt  due  to 
the  latter  before  bringing  the  action,  the 
Court  of  Appeals  held  that  the  defend- 
ant having  voluntarily  put  it  out  of  his 
power  to  restore  the  pledge,  a  tender  of 
the  money  borrowed  would  have  been 
fruitless,  and  was,  therefore,  unneces- 
sary. As  to  the  measure  of  damages, 
the  court  adhered  to  the  rule  adopted 
by  the  court  below,  but  based  their 
judgment  in  this  particular  upon  the  spe- 
cial circumstances  of  the  case.  Ruggks, 
J.,  said:  —  "The  ground  on  which  the 
defendant  insists  that  the  damages  must 
be  estimated  according  to  the  price  of 
the  stock  on  the  24th  of  December,  is 
that  the  plaintiif  on  learning  that  the 
defendant  had  sold  it,  might  then  have 
gone  into  the  market,  and  purchased  at 
the  current  price  on  that  day.  But  it  is 
evident  that  he  was  prevented  from  do- 
ing so  by  the  repeated  promises  of  the 
defendant  to  restore  the  stock.  Al- 
though the  plaintiff  was  strictly  entitled 
to  a  re-transfer  of  the  same  shares  that 
were  pledged,  it  appears  that  his  broker 
was  willing  to  receive  other  stock  of  the 
same  description  and  value,  which  the 
defendant   promised   from   day  to  day 


to  give,  the  plaintiff  being  all  the 
time  ready  to  pay  the  money  borrowed. 
Time  having  thus  been  given  to  the 
defendant,  at  his  request,  for  the  fulfil- 
ment of  his  obligation,  and  the  plaintiff 
having  waited  for  the  delivery  of  the 
stock  for  the  accommodation  of  the  de- 
fendant, and  having  relied  on  the  ex- 
pectation thus  held  out,  and  lost  the 
opportunity  of  purchasing  at  a  reduced 
price,  it  is  manifestly  just  that  the  plain- 
tiff should  recover  according  to  the 
value  of  the  thing  pledged,  when  the 
defendant  finally  failed  in  his  promises 
to  restore  it."  But  although  such  a 
transfer  operates  as  a  pledge  and  not  as 
a  mortgage,  it  was  nevertheless  held  that 
the  legal  title  passes  to  the  pledgee  so 
as  to  entitle  the  pledgor  to  bring  his  bill 
to  redeem  and  to  have  an  account  of  the 
profits  of  the  stock.  Hasbrouck  i'.  Van- 
dervoort,  4  Sandf.  74. 

((/)  Allen  I'.  Dykers,  3  Hill,  593,  7 
Id.  497. 

(e)  Upon  this  point  Walworth,  C, 
remarked: — "The  authority  to  sell 
the  stock  in  question  at  the  board  of 
brokers,  for  the  payment  of  the  debt,  if 
such  debt  was  not  paid  when  it  became 
due,  did  not  authorize  the  pledgees, 
even  if  they  had  retained  tiie  stock  in 
their  own  "hands,  to  put  the  same  up 
secretly.    But  they  should  have  put  up 

[619] 


600 


THE  LAW   OF   CONTRACTS. 


[book  III. 


The  pledgee  may  have  his  action  of  trover  for  the  pledge 
against  a  third  party  who  takes  it  from  him,  and  recover  its 
full  value,  because  he  is  responsible  over  to  the  pledgor,  (ee) 
but  in  an  action  against  one  who  derives  title  from  the 
pledgor,  he  can  recover  only  the  amount  of  his  debt.  (/) 
And  the  pledgor  retains  sufficient  property  in  the  pledge  to 
transfer  it,  subject  to  the  pledgee's  right,  to  any  buyer,  who 
after  a  tender  of  the  amount  of  the  debt  due  may  maintain 
an  action  of  trover  against  the  pledgee,  (ff)  Nor  does  such 
pledgee  acquire  an  absolute  title  simply  by  the  failure  of  the 
pledgor  to  pay  the  debt;  there  is  no  forfeiture  until  the 
pledgee's  rights  are  determined  by  what  is  equivalent  to  a 
foreclosure,  (g-) 

The  holder  of  negotiable  paper,  even  though  it  be  accom- 
modation paper,  is  not  in  contemplation  of  law  a  pledgee. 
He  may,  therefore,  sell,  discount,  or  pledge  it,  at  his  plea- 
sure, (h)     For  when  one  has  sent  negotiable  paper  into  the 


the  stock  openly,  and  offered  it  for  sale 
to  the  highest  bidder,  at  the  board  of 
brokers ;  stating  that  it  was  stock  which 
had  been  pledged  for  the  security  of 
this  debt,  and  with  authority  to  sell  it 
at  the  board  of  brokers  if  the  debt  was 
not  paid.  In  this  way  only  the  stock 
would  be  likely  to  bring  its  foir  market 
value  at  the  time  it  was  offered  for  sale. 
And  in  this  way  alone  could  it  be  known 
that  it  was  honestly  and  fairly  sold,  and 
that  it  was  not  purchased  in  for  the 
benefit  of  the  pledgees  by  some  secret 
understanding  between  them  and  the 
purchasers.  It  is  a  well  known  fact 
that  shares  of  stock  are  constantly  sold 
at  the  board  of  brokers,  which  shares 
exist  only  in  the  imagination  of  the  no- 
minal buyers  and  sellers.  Such  sales, 
as  every  body  knows,  are  not  legally 
binding  upon  either  party.  When  a 
real  sale,  therefore,  is  to  be  made  at  the 
board  of  brokers,  of  shares  of  stock 
which  have  an  actual  existence,  and 
which  have  been  pledged  for  the  pay- 
ment of  a  debt,  with  authority  to  sell 
them  at  that  board,  the  stock  should  be 
specifically  described  at  the  time  of  such 
sale,  as  so  many  shares  standing  in  the 
name  of  the  pledgee  and  sold  on  ac- 
count of  the  pledgor ;  so  that  if  a  full 
price  is  obtained  for  it  on  such  sale,  the 
pledgor  of  the  stock  may  know  that  he 

[620] 


is  entitled  to  the  benefit  of  the  sale. 
For  without  such  specification,  the  sale, 
if  an  advantageous  one,  may  be  put 
down  as  a  sale  of  stocks  of  the  pledgee, 
and  which  have  been  sold  on  his  own 
account.  Secret  sales,  therefore,  cannot 
be  sustained  under  such  an  agreement 
or  authority."  It  should  be  observed, 
however,  that  Mr.  Justice  VanJerpoel, 
in  the  case  of  Wilson  v.  Little,  already 
cited,  was  inclined  to  doubt  the  sound- 
ness of  these  views  of  the  learned  chan- 
cellor. He  says:  —  "In  Dykers  v.  Al- 
len, 7  Hill,  498,  Wahcortk,  Chancellor, 
intimates  or  directs  how  stock,  which  is 
pledged,  should  be  sold  at  the  board  of 
brokers.  The  soundness  of  his  views 
as  to  the  mode  of  selling  docs  not,  per- 
haps, come  in  question  here.  Were  it 
presented  by  this  case,  I  should  incline 
very  strongly  to  the  opinion,  that  this 
part  of  the  learned  Chancellor's  judg- 
ment was  uncalled  for  by  the  case,  and 
has  not,  therefore,  the  weight  of  author- 
ity." 

(ee)  Harker  v.  Dement,  9  Gill  7. 

{/)  Browncll  v.  Hawkins,  4  Barb.  491. 

iff)  Franklin  v.  Neate,  13  M.  &  W. 
481. 

(<7)  Brownell  v.  Hawkins,  4  Barb.  491. 

(h)  Appleton  v.  Donaldson,  3  Barr, 
381 :  Jarvis  v.  Eogers,  13  Mass.  105. 


CH.   XII.] 


BAILMENT. 


'601 


world,  and  given  it  credit  and  currency,  he  cannot  protect 
himself  against  a  bond  fide  holder  for  a  valuable  consideration, 
on  the  ground  that  he  did  not  authorize  it  to  be  used  except 
for  some  particular  purpose.  It  has  been  held,  however,  that 
this  rule  with  regard  to  negotiable  paper  does  not  extend  to 
a  bill  of  lading,  (i) 

And  so  an  ordinary  loan  of  stocks  does  not  amount  to  a 
bailment,  but  to  a  sale,  to  be  paid  for  in  similar  kind  and 
quantity,  as  otherwise  the  purposes  of  a  loan  could  not  be 
effected,  {j) 

Although  transfer  of  possession  must  accompany  a  pledge, 
a  re-transfer  to  the  owner  for  a  temporary  purpose,  as  agent 
or  special  bailee  for  the  pledgee,  does  not  impair  the  title  or 
possession  of  the  pledgee.  (Jc) 

*  At  common  law,  pledges  could  not  be  taken  in  an  execu- 
tion in  favor  of  a  third  party  against  the  pledgor.  (/)     The 


(t)  Newsorar.  Thornton,  6  East,  17. 

( /)  Per  Walworth,  C.,  in  Dykers  v. 
Allen,  7  Hill,  497. 

(k)  Hays  v.  Riddle,  1  Sandf.  248; 
Reeves  v.  Capper,  5  Bing.  N.  C.  136. 
In  this  last  case  one  Wilson,  the  cap- 
tain of  a  ship,  pledged  his  chronometer, 
then  in  the  possession  of  the  makers, 
to  defendants,  the  owners  of  the  ship, 
in  consideration  of  their  advancing 
him  £50,  and  allowing  him  the  use  of 
the  instrument  during  a  voyage  on 
which  he  was  about  to  depart.  After 
the  voyage  was  ended  he  placed  it  at 
the  maker's  again,  and  then  pledged  it 
to  the  plaintiff,  for  whom  the  makers, 
being  ignorant  of  the  pledge  to  the  de- 
fendants, agreed  to  hold  it.  The  money 
advanced  by  the  defendants  not  having 
been  repaid,  it  was  held  that  the  proper- 
ty in  the  instrument  was  in  the  defend- 
ants. The  counsel  for  the  plaintiff  con- 
tended that  the  possession  of  the  chro- 
nometer having  been  parted  with  by  the 
defendants,  their  property  in  it  was  en- 
tirely lost,  upon  the  ground,  that  where 
the  party  to  whom  a  personal  chattel  is 
pledged  parts  with  the  possession  of  it, 
he  loses  all  right  to  his  pledge.  But, 
per  Tindal,  C.  J.:  —  "As  to  the  second 
point,  we  agree  entirely  with  the  doc- 
trine laid  down  inRyall  v.  Rolle,  1  Atk. 
165,  that  in  the  case  of  a  simple  pawn 
of  a  personal  chattel,  if  the  creditor 
parts  with  the  possession,  he  loses  his 


property  in  the  pledge ;  but  we  think 
the  delivery  of  the  chronometer  to  Wil- 
son under  the  terms  of  the  agreement 
itself  was  not  a  parting  with  the  pos- 
session, but  that  the  possession  of  Cap- 
tain Wilson  was  still  the  possession  of 
Messrs.  Capper.  The  terms  of  the 
agreement  were,  that  '  they  would  al- 
low him  the  use  of  it  for  the  voyage ; ' 
words  that  gave  him  no  interest  in  the 
chronometer,  but  only  a  license  or  per- 
mission to  use  it,  for  a  limited  time, 
whilst  he  continued  as  their  servant, 
and  employed  it  for  the  purpose  of  na- 
vigating their  ship.  During  the  con- 
tinuance of  the  voyage,  and  when  the 
voyage  terminated,  the  possession  of 
Captain  Wilson  was  the  possession  of 
Messrs.  Capper;  just  as  the  possession 
of  plate  by  a  butler  is  the  possession  of 
the  master ;  and  the  delivery  over  to 
the  plaintiff  was,  as  between  Captain 
Wilson  and  tlie  defendants,  a  wrongful 
act,  just  as  the  delivery  over  of  the  plate 
by  the  butler  to  a  stranger  would  have 
been ;  and  could  give  no  more  right  to 
the  bailee  than  Captain  Wilson  had 
himself."  See  also  Roberts  v.  Wyatt, 
2  Taunt.  268;  Spalding  v.  Adams,  32 
Maine,  211  ;  Flory  v.  Denny,  11  E.  L. 
&  E.  584. 

(/)  Bro.  Abr.  tit.  Pledges,  28 ;  Rex 
V.  Hanger,  3  Bulst.  1,  17;  Badlam  v. 
Tucker,  1  Pick.  389,  399.  In  tiiis  last 
case,  a  qucere  is  made  whether  the  cred- 

[621] 


602  *  THE  LAW   OF  CONTRACTS.  [BOOK  HI. 

common  law,  however,  has  been  changed  to  some  extent  in 
this  particular,  in  some  of  our  States,  by  statutes. 

The  pledgee  cannot  retain  a  pledge  for  the  purpose  of  se- 
curing other  debts  than  those  for  which  it  was  given,  unless 
that  was  the  intention  of  the  parties,  (m) 

The  pledgee,  after  the  pledgor  fails  to  pay  the  debt  as  due, 
may  sell  the  pledge.  If  there  be  no  definite  time  for  the  pay- 
ment of  the  debt,  the  pledgee  may  require  an  immediate 
payment,  but  must,  as  we  have  seen,  demand  payment  be- 
fore selling  the  pledge.  In  all  cases  of  sale,  the  pledgee  must, 
before  the  sale,  give  a  reasonable  notice  to  the  pledgor.  (?i) 
And  it  is  safer  and  better  to  have  a  judicial  sale,  by  a  decree 
in  chancery,  whenever  the  State  courts  have  power  to  make 
such  decree.  Such  judicial  process  was  once  necessary  to 
make  the  sale  valid;  but  is  not  so  now.  (o)  The  pledgee 
should  not  buy  the  pledge  himself;  {p)  nor  sell  more  than 
enough  to  pay  his  debt,  if  the  pledge  consist  of  separable 
parts ;  and  if  the  proceeds  do  not  pay  his  debt,  he  may  sue 
for  the  surplus. 

This  bailment  is  terminated  either  by  payment  and  satis- 
*  faction  of  the  debt  by  acts  of  the  party  or  operation  of  law, 
or  by  its  merger  and  discharge  by  the  taking  of  such  higher 
security  as  operates  as  a  release  of  the  simple  debt  for  which 
the  pledge  was  given. 

itor  might  not  remove  the  incumbrance,  176;  Luckett  v.   Townsend,  3  Texas, 

and  then  attach  the  property.     See  also  119.     In  this  last  case  it  was  decided 

Pomeroy  v.  Smith,  17  Pick.  85  ;  Srodes  that  a  stipulation  in  a  contract  of  pledg- 

V.  Caven,  3  Watts',  258.  ing,  that  if  the  pledge  be  not  redeemed 

{m)  Jarvis  v.  Ilogers,  15  Mass.  389  ;  within  a  specified  time  the  riglit  of  pro- 

Eushforth   v.   Hadtield,   7    East,  224 ;  pcrty  shall  be  absolute  in  the  pawnee, 

Walker  v.  Bircli,  6  T.  R.  258.  can  have  no  effect,  and  is  absolutely  ia- 

(n)  Tucker  v.  AVilson,    1   P.  Wms.  operative. 

261,  1  Bro.  P.  C.  494,  5  Brown's  Cases  (o)  Ibid.    But  in  a  late  case  in  Eng- 

in  Pari.   193;   Lockwood  v.   Ewer,  9  land  the  right  of  a  pledgee  to  sell  upon 

Mod.   275,   2  Atk.  303  ;   Hart  v.  Ten  non-payment  is   denied.     Micklewaite 

Eyck,  2  Johns.  C.  R.  100;  Stearns  v.  v.   Winter,    19    Law  Times  Reps.  61. 

Marsh,  4  Denio,  227  ;  Castello  v.  Bank  This  case  seems  opposed  by  the  general 

of  Albany,  1  N.  Y.  Legal  Observer,  25  ;  tendency  of  the  American  cases. 

De  Lisle  V.  Priestman,  1  P.  A.  Browne,  (p)  1  Story's  Eq.  Jur.  §  308  -  323. 

[622] 


CH.  XII.]  BAILMENT.  -602 


SECTION  V. 
LOCATIO. 

Locatio,  in  general,  means  a  hiring  ;  and  as  there  are  many 
ways  of  hiring,  the  general  topic  includes  these  particular 
forms,  and  usually  the  classification  and  the  terms  of  the  civil 
law  are  used. 

1.  Locatio  rei  ;  —  where  a  thing  is  hired  and  the  hirer 
acquires  the  temporary  use  of  the  thing  bailed. 

2.  Locatio  operis  faciendi  ; — where  the  bailee  is  hired 
to  do  some  work  or  bestow  some  care  on  the  things  bailed. 

3.  Locatio  operis  mercium  vehendarum  ;  —  where  the 
bailee  is  hired  to  carry  the  goods  for  the  bailor  from  one 
place  to  another. 

We  shall  consider  these  subjects  in  this  order ;  and  begin 
with  the 

Locatio  rei.  "When  the  owner  of  a  thing  lets  it  to  ano- 
ther, who  is  to  have  the  -use  of  the  thing,  and  to  pay  a  com- 
pensation therefor,  the  contract  between  these  parties  is  for 
their  mutual  benefit.  The  bailee  is  therefore  bound  only  to 
take  ordinary  care  of  the  thing  bailed,  (q)     But  this  obliga- 

(7)  Reeves  v.  The  Ship  Constitution,  of  a  family  would   take   of  his  own. 

Gilpin,  579  ;  Bray  v.  Mayne,  Gow,  1  ;  Hence  the  hirer  of  a  thing,  being  rc- 

Millon   V.    Salisbury,    13    Johns.   211;  sponsible  only  for  that  degree  of  dili- 

Harrington   v.   Snyder,   3   Barb.  380 ;  gcnce  which  all  prudent  men  use,  that 

Hawkins  v.  Phythian,  8  B.  Mon.  5l5.  is,  which  the  generality  of  mankind  use, 

In  the  case  of  Columbus  v.  Howard,  6  in  keeping  their  own  goods  of  the  same 

Geo.  213,  219,  Mr.  Justice  Zwm^in  said  :  kind,  it  is  very  clear  he  can  be  liable 

"  The  question  has  been  much  mooted,  pnly  for  such  injuries  as  are  shown  to 

what  degree  of  care  or  diligence  is  re-  come  from   an   omission   of  that  dili- 

quired  of  the  hirer,  while  using  the  pro-  gcnce;  or  in  other  words,  for  ordinary 

perty  for  the  purpose,  and  within  tlie  negligence.    If  a  man  hires  a  horse,  he 

time  for  which  it  was  hired.     Sir  Wil-  is  bound  to  ride  it  moderately,  and  to 

liam  Jones  considered  that  the  contract  treat  it  as  carefully  as  any  man  of  com- 

bcing  one  of  mutual  benefit,  the  hirer  mon  discretion  would  his  own,  and  to 

was  bound  only  for  ordinary  diligence,  supply  it  with  suitable  food ;  and  if  he 

and  of  course  was  responsible  only  for  does  so,  and  the  horse,  in  such  rcasona- 

such.     And  this  opinion  appears  to  be  ble  use,  is  lamed  or  injured,  lie  is  not 

now  settled,  upon  principle,  to  be  the  responsible    for    any    damages."  —  In 

true  ex))osition  of  the  common  law.    He  Dean  v.  Kcatc,  3  Camp.  4,  it  is  held  that 

ought,  therefore,  to  use  the  thing,  and  if.  upon  a  hired  liorse  being  taken  ill. 

to  take  tlic  same  care  in  the  preservation  the  hirer  calls  in  a  farrier,  he  is  not  an- 

of  it  which  a  good  and  prudent  father  swerable  for  any  mistakes  which  the 

[623] 


603 


THE  LAW  OF   CONTRACTS. 


[BOOK  III. 


tion  varies  with  the  nature  of  the  thing  and  the  circum- 
stances. One  who  hires  a  valuable  watch,  easily  disordered 
by  any  negligence,  must  be  more  careful  than  if  the  watch 
were  coarser  and  stronger.  So  of  a  valuable  horse.  So  it 
should  be  if  any  known  circumstances  gave  the  thing  hired 
a  peculiar  value,  calling  for  peculiar  care.  For  the  rule  must 
be,  that  the  hirer  is  bound  to  render  such  care,  in  each  case, 
as  the  owner  has  a  right  to  expect  that  a  man  of  ordinary 
capacity  and  caution  would  take  of  the  same  thing,  if  it  were 
his  own,  and  under  the  same  circumstances,  (r) 


latter  may  commit  in  the  treatment  of 
the  horse,  but  if  instead  of  that  he  pre- 
scribes for  the  horse  himself,  and  from 
unskilfulness  gives  him  a  medicine 
which  causes  his  death,  although  acting 
bond  fide,  he  is  liable  to  the  owner  of 
the  horse  as  for  gross  negligence.  —  A 
somewhat  peculiar  question  of  liability 
arose  in  the  case  of  Davey  v.  Chamber- 
Iain  et.  al.  4  Esp.  229.  It  was  an  action 
on  the  case  for  negligently  driving  a 
chaise,  whereby  the  plaintiff's  horse 
was  killed.  The  two  defendants  were 
proved  to  have  been  together  in  the 
chaise  when  the  accident  happened ; 
but  Chamberlain,  one  of  the  defendants, 
was  sitting  in  the  chaise  smoking,  and 
it  was  driven  by  the  other.  Erskine, 
for  the  defendants,  put  it  to  Lord  Ellen- 
borough  whether  he  was  not  entitled  to 
have  a  verdict  taken  for  Chamberlain  ; 
the  ground  of  his  application  being,  that 
no  verdict  ought  to  pass  against  him, 
the  injury  having  proceeded  from  the 
ignorance  or  unskilfulness  of  the  other 
defendant,  who  was  the  person  driving 
the  chaise,  and  in  whose  care  and  under 
whose  management  it  then  was,  Cham- 
berlain remaining  perfectly  passive,  and 
taking  no  part  in  the  management  or 
direction  of  the  horse.  But  his  lordship 
said  that  "  if  a  person,  driving  his  own 
carriage,  took  another  person  into  it  as 
a  passenger,  such  person  could  not  be 
subjected  to  an  action,  in  case  of  any 
misconduct  in  the  driving  by  the  pro- 
prietor of  the  carriage,  as  he  had  no 
care  nor  concern  with  the  carriage  ;  but 
if  two  persons  were  jointly  concerned 
in  the  carriage,  as  if  both  had  hired  it 
together,  he  thought  the  care  of  the 
king's  subjects  required  that  both 
should  be  answerable  for  any  accident 
arising  from  the  misconduct  of  either 

r624] 


in  the  driving  of  the  carriage,  while  it 
was  so  in  their  joint  care."  The  fact 
turned  out  to  be,  that  the  chaise  in 
question  had  been  hired  by  both  the 
defendants,  and  a  verdict  passed  against 
both  accordingly. 

(r)  What  we  have  stated  above  in 
the  text  is  of  great  importance  in  its 
application  to  hired  slaves.  Inasmuch 
as  a  slave  is  an  intelligent  being,  and 
may  be  supposed  capable,  under  or- 
dinary circumstances,  of  taking  care  of 
himself,  his  employer  is  not  bound  to 
so  strict  diligence  as  the  hirer  of  an 
ordinary  chattel.  This  is  clearly  shown 
by  the  case  of  Swigert  v.  Graham,  7  B. 
Monr.  661.  It  was  an  action  on  the 
case,  brought  by  the  plaintiff  against 
the  owners  of  a  certain  steamboat,  to 
recover  for  the  loss  of  one  Edmund,  the 
plaintiffs  slave,  who,  while  employed 
as  a  hired  hand  upon  the  defendants' 
boat,  was  drowned  in  the  Kentucky 
river.  Marshall,  C.  J.,  in  delivering  the 
opinion  of  the  court,  said :  —  "  The  ma- 
terial question  in  the  case  is,  whether, 
under  the  actual  circumstances,  the 
owners  of  the  boat  are  liable  for  the 
loss  of  the  slave  by  being  drowned 
while  in  their  employ.  And  this  ques- 
tion depends  not  merely  upon  the  gene- 
neral  principles  applicable  to  the  case 
of  bailment  on  hire,  as  they  are  stated  or 
adjudged  in  relation  to  inanimate  or  to 
mere  animal  property,  but  upon  the 
proper  application  or  modification  of 
those  principles  in  reference  to  the  par- 
ticular case  of  a  slave  hired  for  service 
as  a  common  hand  onboard  of  a  steam- 
boat ensa^.jd  in  the  navigation  of  the 
Kent"  .h.y  and  Ohio  rivers.  The  rule 
that  the  bailee  on  hire  is  bound  to  ordi- 
nary diligence,  and  responsible  for  ordi- 
nary neglect,  is  doubtless  true  in  all 


CH.   XII.] 


BAILMENT. 


604 


The  hirer  is  equally  responsible  for  the  negligence  of  his 
servants  as  for  his  own  ;  provided  that  this  negligence  occurred 


cases  of  their  bailment,  unless  there  be 
fraud,  or  a  special  contract  by  which  it 
may  be  varied  in  the  particular  case. 
But  what  is  or  is  not  ordinary  diligence 
may  vary,  not  only  with  the  circum- 
stances under  which  the  subject  of  it 
may  be  placed,  but  with  the  nature  of 
the  suliject  itself.  That  which,  in  re- 
spect to  one  species  of  property,  might 
be  gross  neglect,  might  in  respect  to 
another  species  be  extraordinary  care. 
And,  under  peculiar  circumstances  of 
danger,  extraordinary  exertions  may  be 
required  of  one  who  is  bound  only  to 
ordinary  diligence,  or,  in  other  words, 
the  circumstances  may  be  such,  that 
extraordinary  exertions  are  nothing 
more  than  ordinary  diligence.  Ordi- 
nary diligence,  then,  means  that  degree 
of  care,  or  attention,  or  exertion,  which, 
under  the  actual  circumstances,  a  man 
of  ordinary  prudence  and  discretion 
would  use  in  refei'ence  to  the  particular 
thing  were  it  his  own  property,  or  in 
doing  the  particular  thing,  were  it 
his  own  concern.  And  where  skill 
is  required  for  the  undertaking,  ordi- 
nary  diligence   implies  the  possession 

and  use  of  competent  skill 

....  Applying  these  principles  to 
the  case  of  a  slave  hired  either  for  gene- 
ral or  special  service,  we  come  at  once 
to  the  conclusion,  that  being  ordinarily 
capable,  not  only  of  voluntary  motion, 
by  which  he  performs  various  services, 
but  also  of  observation,  experience, 
knowledge,  and  skill,  and  being  in  a 
plain  case  at  least  as  capable  of  taking 
care  of  his  own  safety  as  the  kirer  or 
owner  himself,  and  presumably  as  much 
disposed  to  do  it,  from  his  possession  of 
these  qualities,  with  habits  and  dispo- 
sition of  obedience  implied  in  his  con- 
dition, and  on  which  the  hirer  has  a 
right  to  rely,  he  may  be  expected  to 
understand  and  perform  many,  and  in- 
deed most,  of  his  duties,  by  order  or 
direction  more  or  less  general,  without 
constant  supervision  or  physical  con- 
trol, and  may  be  relied  on,  unless  under 
extraordinary  circumstances,  for  taking 
care  of  his  own  safety  without  par- 
ticular instructions  on  that  subject,  and 
a  fortiori,  without  being  watched  or  fol- 
lowed, or  led,  to  keep  him  from  running 
unnecessarily  into  danger.     What  sort 


VOL.  I. 


53 


of  care  or  diligence,  then,  is  the  hirer  to 
use  for  the  safety  or  preservation  of  the 
hired  slave  ?  Omitting  to  notice  what 
may  be  necessary  to  his  health  and 
comfort,  we  should  say  that  he  ought 
not,  by  his  orders,  to  expose  him  to  ex- 
traordinary hazard,  without  necessity, 
though  they  be  incident  to  the  nature  of 
the  service  ;  and  that  when  he  does  ex- 
pose him  to  such  hazards,  necessarily 
or  properly,  he  should  use  such  precau- 
tions, by  instructions  or  otherwise,  as 
the  circumstances  seem  to  require,  and 
as  a  man  of  ordinary  prudence  would 
use  in  so  exposing  his  own  slave.  It 
might  be  necessary  in  sending  him  to 
the  bottom  of  a  deep  well,  or  to  the 
eave  of  a  steep  roof,  to  tie  a  rope 
around  his  waist.  But  if  he  were  pos- 
sessed of  ordinary  intelligence,  it  could 
not  be  required  that,  in  sending  him 
across  a  wide  bridge,  he  should  even  be 
cautioned  not  to  jump  or  fall  from  it. 
Nor  if  there  were  a  ford  as  well  as  a 
bridge  crossing  the  river,  both  ordinari- 
ly safe,  and  with  each  of  which  the  slave 
was  well  acquainted,  would  it  be  deemed 
necessary  to  direct  him  to  take  the  one 
and  avoid  the  otlicr,  unless  there  were 
some  circumstances  known  or  appre- 
hended at  the  time,  changing  the  usual 
condition  of  one  or  the  other  ?  Cer- 
tainly it  would  not  be  necessary,  when 
there  was  on  the  road  which  he  was 
accustomed  to  travel  a  ford  to  be  cross- 
ed, with  which  he  was  well  acquainted, 
to  tell  him  cither  not  to  go  out  of  the 
usual  track  into  the  deep  water,  or  not 
to  take  another  road  which  he  was  not 
accustomed  to  travel,  and  which  passed 
the  river  at  a  more  dangerous  place. 
In  the  navigation  of  our  rivers  by  steam 
boats,  it  might  become  necessary,  in  a 
particular  case,  that  some  one  on  Ijoard 
should  swim  to  the  shore  with  a  line, 
though  the  attempt  might  be  attended 
with  great  danger.  This,  though  inci- 
dent to  the  navigation,  would  be  an  ex- 
traordinary hazard,  and  doubtless  it 
should  not  be  ordered,  nor  even  pei'- 
mitted  to  be  incurred  without  the  use 
of  such  precautions  within  the  power  of 
the  captain  or  other  officer,  as  expe- 
rience might  indicate  for  the  occasion. 
But  when  the  boat  is  aground,  on  a 
bar  or  shoal,  where  the  water  on  each 

[625] 


G05 


THE  LAW   OF   CONTRACTS. 


BOOK  III. 


when  the  servant  was  in  the  discharge  of  his  duty,  or  obey- 
ing the  commands  or  instructions  of  his  master,  express  or 
implied.  When  not  so  employed,  the  person,  though  gene- 
rally a  servant,  does  not  then  stand  in  the  relation  or  act  in  the 
capacity  of  a  servant,  so  as  to  fasten  a  liability  for  his  con- 
duct on  his  master ;  and  a  master,  therefore,  would  not  be 
responsible  for  an  injury  committed  by  a  servant  from  his 
own  wilful  malice,  in  which  the  master  had  no  share,  (s)     If 


side,  and  to  the  shore  on  each  side,  is 
not  more  than  three  feet  deep,  it  could 
not  be  deemed  necessary,  in  ordering  a 
particular  individual  to  go  to  the  shore 
through  the  water,  to  do  more,  even  if 
he  were  unacquainted  with  the  bar, 
and  could  not  see  it  plainly,  than  to 
point  out  its  extent,  or  the  direction 
which  he  must  take  to  the  shore,  or  to 
advise  caution  in  his  proceeding,  or  to 
give  such  instruction  as  was  necessary. 
But  if  he  were  well  acquainted  with  the 
bar,  or  it  were  plainly  visible  through 
the  water,  and  were,  moreover,  wide 
and  safe,  the  direction  to  go  to  the 
shore  would  of  itself  be  sufficient.  It 
might  be  ordinarily  assumed  that  the 
individual,  whether  white  or  black, 
slave  or  freeman,  if  he  had  common 
sense,  would  not  go  from  the  bar  into 
the  deep  water,  and  the  person  giving 
the  order  would  not  be  bound  to  antici- 
pate such  a  deviation,  and  either  to 
forbid  it,  or  in  any  manner  to  guard 
against  it,  but  might  pursue  his  own 
employment.  Nor  do  we  suppose  that, 
if  he  knew  the  individual  to  be  a  swim- 
mer, and  saw  that  he  was  purposely  de- 
viating from  the  bar,  with  the  view  of 
swimming  a  few  yards  to  the  shore,  he 
would  be  bound  to  order  him  back,  or 
to  caution  him  against  it,  unless  from 
the  temperature  of  the  water,  or  some 
other  fact,  he  had  reason  to  apprehend 
danger.  The  direction  to  go  to  the  shore 
on  such  an  occasion  implies,  without 
more  said,  that  he  should  go  by  the 
known  and  safe  way.  It  is  only  when, 
from  the  uncertainty  or  difficulty  of 
the  way,  or  from  some  other  circum- 
stance, there  may  be  danger  in  execu- 
ting the  order  given,  that  it  is  necessary, 
in  the  exercise  of  ordinary  care  or  dili- 
gence, to  accompany  it  Avith  any  other 
words  or  acts  than  such  as  are  essential 
to  make  it  intelligible  and  practicable." 
This  point  is  well  illustrated  also  by 

[626] 


the  case  of  Heathcock  v.  Pennington, 
11  Ired.  640.  The  defendant  had  hired 
of  the  plaintiff  a  slave  boy,  about  twelve 
years  of  a  age,  to  drive  a  whim  near  the 
shaft  of  a  gold-mine.  The  boy,  while 
working  there  at  night,  being  without 
an  overcoat,  had  gone  to  the  fire  to 
warm  himself,  and  on  his  being  called 
to  start  his  horse,  being  drowsy,  fell 
into  the  mine  and  was  killed.  It  was 
held,  in  an  action  by  the  plaintiff  to  re- 
cover the  value  of  the  slave,  that  the 
defendant  was  bound  to  use  such  dili- 
gence as  a  man  of  ordinary  prudence 
would,  if  the  property  were  his  own ; 
that  as  a  slave  was  a  rational  being,  so 
much  care  was  not  necessary  as  would 
be  required  of  the  bailee  of  a  brute  or 
an  inanimate  thing ;  that  as  the  plain- 
tiff had  let  the  slave  for  this  very  pur- 
pose, he  must  be  presumed  to  know  all 
the  dangers  and  risks  incident  to  the 
employment ;  and,  therefore,  as  it  did 
not  appear  that  the  usual  risks  were  in 
any  way  increased,  that  he  could  not 
recover.  But  where  a  slave  was  hired 
to  work  in  gold-mines,  in  which  wooden 
buckets  were  used  for  raising  up  water 
and  ore,  in  which  were  valves  for  let- 
ting out  the  water,  and  an  iron  drill 
was  dropped  into  a  bucket,  and  fell 
through  the  valve,  and  split  the  skull  of 
the  slave,  it  was  held  to  be  a  want  of 
ordinary  care.  Biles  v.  Holmes,  11 
Ired.  16.  See  also,  as  to  the  duties  and 
responsibilities  of  the  hirers  of  slaves, 
McCall  V.  Flowers,  11  Humph.  242; 
Mims  V.  Mitchell,  1  Tex.  443  ;  Sims  v. 
Chance,  7  Tex.  561  ;  Mitchell  r.  Mims,  8 
Tex.  6  ;  McLauchlin  v.  Lomas,  3  Strob. 
L.  85  ;  Alston  v.  Balls,  7  Eng.  (Ark.) 
664  ;  Jones  v.  Glass,  13  Ire.  L.  305. 

(s)  Einucane  i\  Small,  1  Esp.  315; 
Foster  v.  Essex  Bank,  17  Mass.  479; 
Brind  v.  Dale,  8  C.  &  P.  207.  See  also 
Butt  V.  Great  Western  Eailway  Co.  7  E. 
L.  &  E.  443.  But  see  Sinclair  v.  Pearson, 


CH.   XII.] 


BAILMENT. 


606 


the  loss  occur  through  theft  or  robbery,  or  the  injury  result 
from  violence,  the  hii'er  is  only  answerable  when  his  impru- 
*dence  or  negligence  caused  or  facilitated  the  injurious  act. 
If  a  bailee  for  hire  sells  the  property  without  authority,  the 
bailor  may  have  trover  against  even  a  bond  fide  purchaser,  [t) 
When  the  thing  bailed  is  lost  or  injured,  the  hirer  is  bound 
to  account  for  such  loss  or  injury,  But  when  this  is  done, 
the  proof  of  negligence  or  want  of  due  care  is  thrown  upon 
the  bailor,  and  the  hirer  is  not  bound  to  prove  affirmatively 
that  he  used  reasonable  care,  (w) 


7  New  Hamp.  219.  See  also  ante,  p. 
87,  n.  (aa.) 

{t)  Loeschman  v.  Machin,  2  Starkie, 
311  ;  Cooper  v.  Willomatt,  1  C.  B.  672. 

(u)  Beckman  v.  Shouse,  5  Ilawle, 
179;  Clark  v.  Spencc,  10  Watts,  335  5 
Runyan  v.  Caldwell,  7  Humph.  134 ; 
Piatt  V.  Hibbard,  7  Cow.  500,  11.  (a) ; 
Schmidt  v.  Blood,  9  Wend.  268  ;  Foote 
V.  Storrs,  2  Barb.  326 ;  Harrington  v. 
Snyder,  3  Barb.  380.  This  question 
was  very  thoroughly  discussed  in  the 
case  of  Logan  v.  Mathews,  6  Barr,  417. 
The  court  below  in  that  case  instructed 
the  jury  that,  "  when  the  bailee  returns 
the  property  in  a  damaged  condition, 
and  fails,  either  at  the  time  or  subse- 
quently, to  give  any  account  of  the  mat- 
ter, in  order  to  explain  how  it  occurred, 
the  law  will  authorize  a  presumption  of 
negligence  on  his  part.  But  when  he' 
gives  an  account,  although  it  may  be  a 
general  one,  of  the  cause,  and  shows 
the  occasion  of  the  injury,  it  then  de- 
volves on  the  plaintiff  to  prove  negli- 
gence, unskilfulness,  or  misconduct." 
And  this  instruction  was  held  to  be  cor- 
rect. Coulter,  J.,  said:  —  "The  books 
are  extremely  meagre  of  authority  on 
this  subject  of  the  onus  prohandl  in  cases 
of  bailment.  But  reason  and  analogy 
would  seem  to  establish  the  correctness 
of  the  position  of  the  court  below.  All 
persons,  who  stand  in  fiduciary  relation 
to  others,  are  bound  to  the  observance 
of  good  faith  and  candor.  The  bailor 
commits  his  property  to  the  bailee,  for 
reward,  in  the  case  of  hiring,  it  is  true  ; 
but  upon  the  implied  undertaking  that 
he  will  observe  due  care  in  its  use.  The 
property  is  in  the  possession  and  under 
the  oversight  of  the  bailee  whilst  the 
bailor  is  at  a  distance.  Under  these 
circumstances,  good  faith  requires  that 


if  the  property  is  returned  in  a  damaged 
condition,  some  account  should  be  given 
of  the  time,  place,  and  manner  of  the 
occurrence  of  the  injury,  so  that  the 
bailor  may  be  enabled  to  test  the  accu- 
racy of  the  bailee's  report,  by  suitable 
inquiries  in  the  neighborhood  and  lo- 
cality of  the  injury.  If  the  bailee  re- 
turns the  buggy,  (which  was  the  pro- 
perty hired  in  this  case,)  and  merely 
says,  "  Here  is  your  property,  broken 
to  pieces,"  what  would  be  the  legal  and 
just  presumption  ?  If  stolen  property 
is  found  in  the  possession  of  an  indi- 
vidual, and  he  will  give  no  manner  of 
account  as  to  the  means  by  which  he 
became  possessed  of  it,  the  presumption 
is  that  he  stole  it  himself.  This  is  a 
much  harsher  presumption  than  the  one 
indicated  by  the  court  in  this  case.  The 
bearing  of  the  law  is  always  against 
him  who  remains  silent  when  justice 
and  honesty  require  him  to  speak.  It 
has  been  ruled,  that  negligence  is  not 
to  be  inferred,  unless  the  state  of  facts 
cannot  otherwise  be  explained.  9  Eng. 
Jurist,  907.  But  how  can  they  be  ex- 
plained, if  he  in  whose  knowledge  they 
rest  will  not  disclose  them  ?  And  does 
not  the  refusal  to  disclose  them  justify' 
the  inference  of  negligence  1  Judge 
Story,  in  his  treatise  on  Bailments, 
§  410,  says  that  it  would  seem  tliat  the 
burden  of  proof  of  negligence  is  on  the 
bailor,  and  that  proof  merely  of  the  loss 
is  not  sufficient  to  put  the  bailee  on  liis 
defence.  The  position  that  v.'e  arc  now 
discussing,  however,  includes  an  ingre- 
dient not  mentioned  by  Judge  Story, 
and  on  which  it  turns  ;  that  is,  the  refu- 
sal or  omission  of  the  bailee  to  give 
any  account  of  the  manner  of  the  loss, 
so  as  to  enable  the  bailor  to  shape  and 
direct  his  inquiries  and  test  its  accuracy. 

[627J 


607 


THE  LAW   OF   CONTRACTS. 


BOOK  III. 


The  owner  must  deliver  the  thing  hired  in  a  condition  to 
be  dsed  as  contemplated  by  the  parties ;  (v)  nor  may  he  in- 
terfere with  the  hirer's  use  of  the  thing  while  the  hirer's  pro- 
perty continues,  (iv)  Even  if  the  hirer  abuses  the  thing 
hired,  as  a  horse  hired  for  a  journey,  although  the  owner 
may  then,  as  it  is  said,  repossess  himself  of  the  thing,  if  he 
can  do  so  peaceably,  he  may  not  do  so  forcibly,  but  must 
resort  to  his  action,  (x)  And  if  such  misuse  of  the  thing 
hired  terminates  the  original  contract,  the  owner  may  de- 
mand the  thing,  and,  on  refusal,  bring  trover ;  or,  in  some 
cases,  without  demand,  (y) 

The  owner  is  said  to  be  bound  to  keep  the  thing  in  good 
order,  that  is,  in  proper  condition  for  use ;  and,  if  expenses 
are  incurred  by  the  hirer  for  this  purpose,  the  owner  must 
repay  them.  On  this  subject,  however,  there  is  some  uncer- 
tainty in  the  cases.     The  cases  usually  referred  to  on  this 


Judge  Story  says  there  are  discrepan- 
cies in  the  authorities.  In  the  French 
law,  as  stated  by  him,  §41  ^  the  rule  is 
different ;  and  the  hirer  is  bound  to 
prove  the  loss  was  without  negligence 
on  his  part.  And  he  cites  the  Scottish 
law  to  the  effect  that  if  any  specific  in- 
jury has  occurred,  not  manifestlfi^  the 
result  of  accident,  the  onus  prohandi  lies 
on  the  hirer  to  justify  himself  by  prov- 
ing the  accident.  That  would  be  near 
the  case  in  hand,  because  the  injury 
here  was  not  manifestly  the  result  of 
accident,  and  the  hirer  did  not  even 
explain  or  state  how  the  accident  oc- 
curred. The  case  of  Ware  v.  Gay,  11 
Pick.  106,  seems  to  have  a  strong  ana- 
loo-y  to  the  principle  asserted.  It  was 
there  ruled  that  where  a  public  carriage 
or  conveyance  is  overturned,  or  breaks 
down,  without  any  apparent  cause,  the 
law  will  imply  negligence,  and  the  bur- 
den of  proof  will  be  on  the  owners  to 
rebut  the  presumption.  The  prima  fade 
evidence  arises  from  the  fact  that  there 
is  no  apparent  cause  for  the  accident. 
And  in  the  case  in  hand,  there  was  no 
apparent  cause;  nor  would  the  hirer 
rrive  any  account  of  the  cause.  We 
Think,  therefore,  there  was  no  error  in 
adding  to  the  answer  the  qualification 
or  explanation  which  we  have  been 
considering."  See  also  Skinner  v.  Lon- 
don, Brighton,  and  Southcoast  Railway 

[628] 


Co.  2  E.  L.  &  E.  360.  And  in  Bush  v' 
Miller,  13  Barb.  481,  where  property 
was  delivered  to  the  defendant,  who  re- 
ceived the  same,  and  engaged  to  forward 
it,  but  it  was  never  afterwards  seen  nor 
heard  of,  and  the  defendant  never  ac- 
counted for  it  in  any  way,  it  was  held 
that  he  was  prima  facie  liable  for  the 
goods  without  proof  of  negligence, 
which  proof  could  not  be  required  un- 
less he  gave  some  account  of  his  dis- 
position of  the  property. 

{v)  Sutton  V.  Temple,  12  M.  &  W.  52, 
60. 

{w)  Hickok  V.  Buck,  22  Verm.  149. 
In  this  case  the  defendant  leased  to  the 
plaintiff  a  farm  for  one  year,  and,  by 
the  contract,  was  to  provide  a  horse  for 
the  plaintiff  to  use  upon  the  farm  dur- 
ing the  term.  At  the  commencement 
of  the  term  he  furnished  a  horse,  but 
took  him  away  and  sold  him  before  the 
expiration  of  the  term,  without  pro- 
viding another.  It  was  held  that  the 
plaintiff  acquired  a  special  property  in 
the  horse,  by  the  bailment,  and  was  en- 
titled to  recover,  in  an  action  of  trover, 
for  the  horse  so  taken  away,  damages 
for  the  loss  of  the  use  of  the  horse  dur- 
ing the  residue  of  the  term. 

(:r)  Lee  v.  Atkinson,  Yelv.  172. 

(y)  See  the  case  of  Fouldes  v.  Wil- 
lou'ghby,  8  M.  &  W.  540,  as  to  what 
will  amount  to  a  conversion. 


CH.  XII.] 


BAILMENT. 


G08 


point  relate  to  real  estate  ;  (z)  but  the  hirer  of  land,  or  of  a 
real  chattel,  has  neither  the  same  rights  nor  obligations  with 
the  hirer  of  a  personal  chattel.  Perhaps  the  conflicting  opi- 
nions may  be  reconciled,  by  regarding  it  as  the  true  principle 
*that  the  owner  is  not  bound  (unless  by  special  agreement, 
express,  or  implied  by  the  particular  circumstances)  to  make 
such  repairs  as  are  made  necessary  by  the  natural  wear  and 
tear  of  the  thing,  or  by  such  accidents  as  are  to  be  expected, 
as  the  casting  of  a  horse-shoe  after  it  has  been  worn  a  usual 
time ;  but  is  bound  to  provide  that  the  thing  be  in  good  con- 
dition to  last  during  the  time  for  which  it  is  hired,  if  that 
can  be  done  by  reasonable  care,  and  afterwards  is  liable  only 
for  such  repairs  as  are  made  necessary  by  unexpected 
causes,  (a) 

On  the  part  of  the  hirer  there  is  an  implied  obligation  to 
use  the  thing  only  for  the  purpose  and  in  the  manner  for 
which  it  was  hir^d  ;  and  in  no  way  to  abuse  it.  (b) 

The  hirer  must  surrender  the  property  at  the  time  appoint- 
ed ;  and  if  no  time  be  specified  in  the  contract,  then  when- 
ever called  upon  after  a  reasonable  time ;  and  what  this  is 


(-)  Pomfret  v.  Ricroft,  1  Saund.  321 ; 
Taylor  v.  Whitehead,  Douglas,  744  ; 
Cheetham  v.  Hampson,  4  T.  E.  318  ; 

Ferguson  v. ,  2  Esp.  590  ;  Ilorse- 

fairr.  Mather,  Holt,  N.  P.  7. 

(a)  There  is  very  little  direct  author- 
ity in  our  books  upon  this  question.  In 
Pomfret  v.  Eicroft,  1  Saund.  321,  Lord 
Hale  says  :  —  "  If  I  lend  a  piece  of 
plate,  and  covenant  by  deed  that  the 
party  to  whom  it  is  lent  shall  have  the 
use  of  it,  yet  if  the  plate  be  worn  out  by 
ordinary  use  and  wearing  without  my 
fault,  no  action  of  covenant  lies  against 
me."  But  this  is  only  a  dictum.  So  in 
Taylor  v.  Whitehead,  Doug.  744,  Lord 
Mansjield  says  in  general  terms,  that  by 
the  common  law  he  who  has  the  use  of 
a  thing  ought  to  repair  it.  But  he  pro- 
bably had  his  mind  upon  real  property. 
In  the  case  of  Isbell  v.  Norvell,  4  Grat. 
176,  it  is  held  that  where  the  hirer  of  a 
slave  pays  a  physician  for  attending  on 
the  slave  while  he  is  hired,  he  is  entitled 
to  have  the  amount  repaid  him  by  the 
owner  of  the  slave.  But  in  the  case  of 
Eedding  v.  Hall,  1  Bibb,  536,  the  same 
question  was  decided  the  other  way, 

53* 


after  a  careful  [examination  of  the  au- 
thorities. It  is  impossible  to  say  with 
certainty  what  the  true  rule  of  law  is 
until  we  have  further  adjudication.  But 
it  seems  to  be  certain  that  the  hirer  of 
an  animal  is  bound  to  bear  the  expense 
of  keeping  it,  unless  there  is  an  agree- 
ment to  the  contrary.  See  Handford 
V.  Palmer,  2  Brod.  &  Bing.  359. 

(6)  Homer  v.  Thwing,  3  Pick.  492 ; 
Rotch  V.  Ilawcs,  12  Pick.  136;  Whee- 
lock  I'.  Wheelwright,  5  Mass.  104;  De 
ToUenere  v.  Fuller,  1  So.  Car.  Const. 
Eep.  116  ;  Duncan  v.  Rail  Road  Com- 
pany, 2  Rich.  613  ;  Columbus  v.  How- 
ard, 6  Geo.  213;  Harrington  v.  Snyder. 
3  Barb.  380.  In  the  case  of  Mullen  v. 
Enslcy,  8  Humph.  428,  the  defendant, 
having  hired  a  slave  of  the  plaintiff,  for 
general  and  common  service,  set  him  to 
blasting  rocks,  and  the  slave  while  so 
engaged  was  severely  injured.  Tlie 
court  held  the  defendant  liable.  Ami 
Turley,  J.,  said  :  —  "  We  arc  of  opinion 
that  the  employment  of  blasting  rocks 
is  not  an  ordinary  and  usual  one;  that 
it  is  attended  with  more  personal  dan- 
ger than  is  common  to  the  usual  voca- 

[629] 


609  THE  LAW  OF  CONTRACTS.         [BOOK  III. 

will  be  determined  in  each  case  by  its  nature  and  circum- 
stances, (c) 

By  the  contract  of  hire,  the  hirer  acquires  a  qualified  pro- 
perty in  the  thing  hired,  which  he  may  maintain  against  all 
persons  except  the  owner,  and  against  him  so  far  as  the 
terms  and  conditions  of  the  contract,  express  or  implied,  may 
warrant,  [d)  During  the  time  for  which  the  hirer  is  entitled 
to  the  use  of  the  thing,  the  owner  is  bound  not  to  disturb 
him  in  that  use;  and  if  the  hirer  returns  it  to  the  owner  for 
a  temporary  purpose,  he  is  bound  to  return  it  to  the  hirer,  (e) 

It  is"  held  that  if  a  hirer  fastens  hired  chattels  to  real  estate, 
in  such  a  way  that  they  cannot  be  removed  without  injury  to 
the  real  property,  a  purchaser  of  the  land,  without  notice, 
holds  the  chattels,  and  the  owner  of  them  must  look  to  the 
hirer  for  compensation.  (/) 

The  letter  for  hire  acquires  an  absolute  right  to,  and  property 
in,  the  compensation  due  for  the  thing  hired  ;  and  this  compen- 
sation or  price,  where  not  fixed  by  the  parties,  must  be  a 
reasonable  price,  to  be  determined,  like  the  time  for  which 
the  thing  is  hired,  by  the  nature  and  circumstances  of  the 
case. 

The  contract  of  hire  may  be  terminated  by  the  expiration 
of  the  time  for  which  the  thing  was  hired,  or  by  the  act  of 
either  party  within  a  reasonable  time,  if  no  time  be  fixed  by 
the  contract.  Or  by  the  agreement  of  both  parties  at  any 
time.  Or  by  operation  of  law,  when  the  hirer  becomes  the 
owner  of  the  thing  hired.  Or  by  the  destruction  of  the  thing 
hired.  If  it  perish  without  the  fault  of  either  party,  before 
any  use  of  it  by  the  hirer,  he   has  nothing  to  pay ;  if  after 

tions  of  life ;  and  that  a  bailee,  who  has  received  wounds  of  which  he  died,  and 

hired  a  negro  for  general  and  common  in  an  action  by  the  o^^Tier  to   recover 

service,  has  no  right  to  employ  him  in  the  value  of  the  slave  from  the  hirer, 

such  an  occupation,  without  the  consent  the  jury  gave  a  verdict  for  the  defend- 

of  his  owner."    But  in  the  case  of  Mc-  ant,  the  court  refused  to  grant  a  new 

Lauchlin  v.  Lomas,  3  Strobh.  85,  where  trial.     Richardson,  J.,  dissented. 

a   negro  was   let  to   hire   as   a  house  (c)  See  Esmay  v.  Fanning,  9  Barb. 

carpenter,   and  was    employed   by  the  176. 

hii"er  in  his  shop,  where  he  carried  on  (d)  See  Hickok  v.  Buck,  22  Verm. 

the  business  of  a  house  carpenter,  and  149,  cited  ante,  p.  607,  n.  (w.) 

where  his  workmen  were  accustomed  to  (e)    Roberts    v.    Wyatt,     2   Taunt. 

use  a  steam  circular  saw,  when  neces-  268. 

sary  for  their  work  at  the  business,  and  (/)   Fiyatt  v.   The   Sullivan   Com- 

the  negro,  while  at  work  at  the  saw,  pany,  5  Hill,  116,  7  Id.  529. 

[630] 


CH.   XII.]  BAILMENT.  *610 

some  use,  it  may  be  doubted  how  far  the  aversion  of  the  law 
to  apportionment  would  prevent  the  owner  from  recovering 
pro  tanto ;  probably,  however,  where  the  nature  of  the  case 
admitted  of  a  distinct  and  just  apportionment,  it  would  be 
applied,  [g)  Either  party  being  in  fault  would  of  course  be 
*  answerable  to  the  other.  And  the  contract  might  provide 
for  the  contingency  of  the  destruction  of  the  property  in  any 
manner. 

LocATio  oPERis  FACiENDi.  The  cascs  in  which  the  bailee 
is  to  do  some  work  or  bestow  some  care  upon  or  about  the 
thing  bailed,  may  be  conveniently  divided  into  those  where, 

1.  Mechanics  are  employed  in  the  manufacture  or  repair 
of  the  article  bailed  to  them. 

2.  Warehousemen  or  wharfingers  are  charged  with  the 
custody  of  the  thing  bailed. 

3.  Postmasters  receive  letters  to  be  sent  as  directed. 

4.  Innkeepers  receive  the  goods  of  guests. 

Where  mechanics  are  employed  to  make  up  materials  fur- 
nished, or  to  alter  or  repair  a  specific  thing,  the  contract  is 
one  of  mutual  benefit,  and  only  ordinary  care  is  required. 
But  this  care  may  vary  much  in  different  cases.  Common 
wood  may  be  given  to  a  carpenter  to  make  a  common  box. 
A  chronometer  may  be  delivered  to  a  watchmaker  to  be 
cleaned  or  repaired.  A  diamond  may  be  given  to  a  lapidary 
to  be  cut  and  polished.  The  care  required  in  these  cases  is 
very  different ;  but  it  is  always  ordinary  care ;  that  is,  such 
care  as  a  person  of  ordinary  caution  and  capacity  would 
take  of  that  specific  thing.  So  of  the  skill  required.  A  per- 
son who  receives  a  chronometer  to  repair,  and  undertakes 
the  work,  warrants  that  he  possesses  and  will  exert  the  care 
and  the  skill  requisite  to  do  that  work  properly,  and  to  pre- 
serve the  article  safely.  If,  however,  one  chooses  to  employ, 
on  a  work  requiring  great  and  peculiar  skill,  one  whom  he 

[g)    See    Harrington    v.   Snyder,   3  Ilolcombe,  1  N.  C.  Law  Rep.  365 ;  Ba- 

Barb.   380.     As   to  apportionment   in  cot  v.  Parnell,  2  Bailey,  424  ;  Kcdding 

cases  of  hired  slaves,   wlierc  tlie  slave  v.  Hall,  1  Bibb.  536 ;  Harrison  r.  Mur- 

dics  during  the  period  of  his  service,  rell,  5  Monr.  359 ;  Dudgeon  ?'.  Tcass, 

see  the  following  cases.     George  v.  El-  9  Missouri,  867  ;    Collins  v.  Woodruff, 

liott,  2  Hen.  &  Munf.  5 ;  Williams  v.  4  Eng.  [Ark.]  463. 

[631] 


611*  THE  LAW   OF   CONTRACTS.  [BOOK   III. 

has  reason  to  know  to  be  deficient  in  that  skill,  he  can  have 
no  remedy  for  the  want  of  it.  (g-g) 

The  obligations  of  the  workman  are,  to  do  the  work  in  a 
proper  manner,  and  at  the  time  agreed  on,  or  in  a  reasonable 
time  if  none  be  specified ;  to  employ  the  materials  furnished 
in  the  right  way,  and  not  only  to  guard  *  against  all  ordinary 
hazards,  but  to  use  his  best  endeavors  to  protect  the  thing 
delivered  to  him  against  all  peril  or  injury.  And  he  should 
do  the  work  himself,  where,  from  the  circumstances,  it  may 
be  presumed  that  the  personal  ability  or  skill  of  the  workman 
are  contracted  for. 

The  workman  has  a  special  property  in  the  thing  delivered 
to  him,  and  may  maintain  an  action  against  one  who  wrong- 
fully takes  it  from  his  possession.  If  it  perishes  in  his  hands, 
without  his  fault,  the  owner  loses  the  property.  And  from 
the  authorities  it  might  seem  that  the  owner  is  also  bound  to 
pay  pro  tanto  for  the  work  and  labor  already  expended  upon 
it,  (where  the  contract  does  not  provide  otherwise,)  as  well 
as  the  materials  used  and  applied,  [h)  We  doubt,  however, 
if  the  practice  in  this  country  be  altogether  so  ;  it  is  certain 
that  a  distinct  usage  to  the  contrary  would  control  any  such 
rule;  {i)  and  without  asserting  that  there  is  any  such  esta- 
blished usage,  we  think  that,  generally,  where  an  owner 
leaves  a  chattel  with  a  workman  who  is  to  labor  upon  it,  and 
the  chattel  is  accidentally  destroyed  when  this  labor  has  been 
partially  performed,  each  loses  what  each  one  has  in  the 
thing  destroyed ;  the  owner  his  property,  and  the  workman 
his  labor.  If  the  thing  perishes  from  intrinsic  defect,  the 
reason  for  requiring  joro  tanto  compensation  from  the  owner 
would  be  stronger. 

Where  the  workman  is  employed  to  make  a  thing  out  of 
his  own  materials,  it  is  a  case  of  purchase  and  sale,  or  hiring 
of  labor,  and  not  of  bailment.     But  if  the  principal  materials 

{^^)  Felt  u.  School  Dist.,  24  Verm.  297.  usage,  to  the  effect  that  the  M-orkman 

{h)  Menetone  v.  Athawes,  3  Burr,  was  not  entitled  to  be  paid  until  his 

1592  ;  Wilson  v.  Knott,  3  Humph.  473.  work  was  finished,  would  prevent  his 

See  also  Brumby  i'.  Smith,  3  Ala.  123.  recovering  for  his  work  and  labor  on 

(i)   It  would  seem  from   Gillett  i\  an  article  accidentally  destroyed,  while 

Mawman,  1  Taunt.  137,  that  a  general  the  work  was  going  on. 

[632] 


CH.   XII.] 


BAILMENT. 


612 


are  delivered  to  the  workman,  this  is   a  case  of  bailment, 
although  he  is  to  add  his  own  materials  to  them,  (j) 
*  Where  materials  are  delivered  to  a  workman,  and  a  fabric  is 


(j)  Merritt  v.  Johnson,  7  Johns. 
473.  This  subject  was  thoroughly  dis- 
cussed in  the  case  of  Gregory  v.  Stry- 
ker,  2  Denio,  628.  It  was  an  action  of 
trespass  for  a  wagon,  and  the  defend- 
ant, who  was  a  constable,  justified  the 
seizure  of  it  under  an  execution  against 
one  Rose  ;  and  the  question  was  whe- 
ther the  wagon  when  taken  by  the  de- 
fendant belonged  to  the  plaintiff  or 
Rose.  It  appeared  that  the  wagon  in 
question  formerly  belonged  to  the  plain- 
tiff, and  that  he  made  a  contract  with 
Rose  to  repair  it  for  him.  Before  the 
wagon  was  repaired,  it  was  worth  but 
little,  except  the  iron ;  none  of  the 
wooden  part  was  used  in  the  reparation 
except  the  tongue  and  cvener.  When 
finished  it  was  worth  $90,  and  Rose's 
account  for  repairs  amounted  to  $78.50. 
The  defendant  took  the  wagon  in  the 
possession  of  Rose  immediately  after 
it  was  completed,  and  sold  it  on  the  ex- 
ecution. Upon  these  facts  the  court 
held  that  the  property  in  the  wagon 
still  continued  in  the  plaintiff.  And 
Beardsley,  J.,  said  :  —  "As  the  value  of 
the  new  materials  and  labor  used  and 
employed  in  repairing  or  reconstruct- 
ing the  wagon  greatly  exceeded  that  of 
the  old  materials  used  in  the  operation, 
it  was  urged  that  this  was  really  a  con- 
tract with  Rose  to  make  a  new  wagon, 
and  not  for  the  repair  of  an  old  one,  and 
therefore,  as  most  of  the  materials  were 
furnished  l)y  him,  his  right  of  property 
in  the  vehicle  would  continue  until  its 
completion  and  delivery  under  the  con- 
tract. No  doubt  where  a  manufacturer 
or  mechanic  agrees  to  construct  a  par- 
ticular article  out  of  his  own  materials, 
or  out  of  materials  the  principal  part  of 
whicli  are  his  own,  tlie  property  of  tlie 
article,  until  its  completion  and  delivery, 
is  in  him,  and  not  in  the  person  for 
whom  it  was  intended  to  be  made.  But 
it  is  equally  clear,  as  a  general  propo- 
sition, that  where  tlic  owner  of  a  da- 
maged or  worn  out  article  delivers  it  to 
another  person  to  be  repaired  and  reno- 
vated by  the  labor  and  materials  of  tlie 
latter,  the  projierty  in  the  article  as  thus 
repaired  and  improved  is  all  along  in 
the  original  owner,  for  whom  the  re- 
pairs were  made,  and  not  in  the  person 


making  them.  The  agreement  in  such 
case  is  but  an  every  day  contract  of 
bailment  —  locatio  operis  fadendi ;  and 
the  original  owner,  so  far  from  losing 
his  general  property  in  the  thing  thus 
placed  in  the  hands  of  another  person 
to  be  repaired,  acquires  that  right  to 
whatever  accessorial  additions  are  made 
in  bringing  it  to  its  new  and  improved 
condition.  Nor  am  I  aware  that  in  this 
class  of  cases  it  is  at  all  important  what 
the  value  of  the  repairs,  actual  or  com- 
parative, may  be.  No  case  is  referred 
to  which  proceeds  on  that  distinction, 
nor  any  writer  by  whom  it  Is  adverted 
to  as  material.  If  we  adopt  this  dis- 
tinction, what  shall  be  its  limit  ?  The 
general  property  must  be  in  one  party 
to  the  exclusion  of  the  other,  for  surely 
they  are  not  tenants  in  common  in  the 
thing  repaired.  Shall  we  then  say  that 
where  the  value  of  the  repairs  falls  be- 
low that  of  the  dilapidated  article  on 
which  they  were  made,  the  original 
owner  has  title  to  tlic  article  in  its 
improved  condition,  and  vice  versa, 
where  they  exceed  it  in  value,  title  to 
the  article,  as  repaired  and  improved, 
passes  over  to  the  person  by  whom  the 
repairs  were  made  ?  Such  a  rule  would 
certainly  be  plain  enough,  and  probably 
might  be  applied  witliout  great  diffi- 
culty, to  any  particular  case.  But  it 
would  be  found  to  give  rise  to  a  variety 
of  questions  never  heard  of  in  actions 
growing  out  of  the  reparation  of  decay- 
ed or  injured  articles ;  and  tlic  rule  it- 
self, I  am  persuaded,  has  not  so  much  as 
the  shadow  of  authority  for  its  support. 
There  are  a  multitude  of  instances  in 
whicii  the  expense  of  proper  repairs 
greatly  exceeds  the  value  of  the  article 
on  which  they  are  made.  It  is  so  in 
the  lowly  operation  of  footing  an  old 
pair  of  boots,  and  not  unfrequently  in 
repairing  a  broken  down  carriage.  The 
principle  contended  for  by  tlie  defend- 
ant is  not  necessary  for  the  security  of 
the  mechanic  by  whom  the  repairs  are 
made.  He  has  a  lien  for  his  lal)or  and 
materials,  and  may  retain  possession 
until  his  just  demands  are  satisfied. 
This  affords  ample  protection  to  the 
mechanic.  And  who,  let  me  ask,  ever 
heard  that  his  lien  was  limited  to  ro- 
[633] 


613 


THE   LAW   OF   CONTRACTS. 


[book  III. 


to  be  returned  by  him,  made  at  his  own  election,  either  of  those 
materials  or  of  similar  materials  of  his  own,  as  if  a  certain  weight 
of  silver  be  given  him,  to  be  returned  in  the  form  of  a  silver 
goblet,  or  a  certain  quantity  of  wheat  to  be  returned  in  flour, 
some  difficulty  has  arisen,  and  some  conflict  of  opinion.  We 
*  should  regard  such  a  contract  not  as  a  locatio  operis  faciendi^ 
but  as  creating  an  obligation  of  a  different  character  on  the 
part  of  the  workman  :  one,  indeed,  more  similar  to  a  debt. 
If  the  contract  expressly,  or  by  a  clear  implication,  imported 
that  the  fabric  to  be  returned  should  be  made  specifically 
of  the  very  material  delivered,  then,  if  the  material  should 
perish  or  be  lost,  without  the  fault  of  the  workman,  it  would 
be  the  loss  of  the  owner.  In  the  former  case,  where  the 
workman  was  at  liberty  to  use  what  materials  of  like  quality 
he  would,  those  delivered  to  him  would  be  regarded  only  as 
a  partial  payment  in  advance  for  the  thing  to  be  made  and 
delivered  to  him  who  advanced  it,  and  the  workman  would 
be  still  bound  to  make  and  deliver  this  article,  [k) 


pairs  which,  in  value,  fall  below  that  of 
the  original  article  on  which  they  are 
made  ?  Yet  this  limitation  must  neces- 
sarily exist,  if  the  ground  assumed  by 
the  counsel  for  the  defendant  is  well 
taken." 

[k)  This  subject  has  been  very  much 
discussed  within  the  last  few  years,  es- 
pecially in  the  courts  of  New  Yoi-k. 
The  earliest  case  that  we  have  seen  is 
that  of  Seymour  v.  Brown,  19  Johns. 
44.  There  the  plaintiff"  sent  to  the  de- 
fendant, a  miller,  a  quantity  of  wheat 
to  be  exchanged  for  flour  at  the  rate  of 
a  barrel  of  flour  for  every  five  bushels 
of  wheat.  The  defendant  mixed  the 
plaintiff''s  wheat  with  the  mass  of  wheat 
of  the  same  quality  belonging  to  him- 
self and  others ;  but,  before  the  flour 
was  delivered  to  the  plaintitf,  the  mill 
of  the  defendant,  with  all  its  contents, 
wheat  and  flour,  was  entirely  destroyed 
by  fire  from  some  unknown  cause,  and 
without  any  fault  or  negligence  on  the 
part  of  the  defendant.  It  was  held  that 
the  defendant  was  not  responsible  for 
the  loss  of  the  plaintiff' 's  wheat,  there 
being  no  contract  of  sale  by  which  the 
property  was  transferred  to  the  defend- 
ant. This  case  was  decided  in  the  year 
1821.     A  few  months  afterwards,  a  case 

[634] 


was  decided  the  same  way  by  the  Court 
of  Appeals  of  Virginia,  on  a  somewhat 
similar  state  of  facts.  Slaughter  v. 
Green,  1  Rand.  3.  In  1825,  the  ques- 
tion came  up  in  Indiana  in  the  case  of 
Ewing  V.  French,  1  Blackf.  353.  The 
facts  of  the  case  were  almost  identical 
with  those  in  Seymour  v.  Brown,  and 
the  court  held  that  the  plaintiff'  was  en- 
tilled  to  recover.  Seymour  v.  Brown 
having  been  cited,  Blackford,  J.,  said  : 
"  That  decision,  it  is  admitted,  cannot 
be  reconciled  with  ours ;  but  as  an  in- 
dependent tribunal,  we  must,  after  con- 
sulting the  authorities  within  our  reach, 
determine  for  ourselves  as  to  what  the 
law  is,  however  unpleasant  it  may  be 
to  diff'er  from  a  court  so  eminently  dis- 
tinguished as  that  of  New  York."  In 
1827  came  the  case  of  Hurd  v.  West,  7 
Cow.  752.  In  that  case  the  defendant 
had  let  a  number  of  sheep  to  one  Day- 
ton, and  Dayton,  while  the  sheep  were 
in  his  possession,  had  sold  them  to  the 
plaintiff".  And  the  question  was,  whe- 
ther the  property  in  the  sheep  was  in 
Dayton,  so  that  he  could  transfer  them 
to  the  plaintiff'.  Woodworth,  J.,  iu  re- 
marking upon  the  evidence,  which  was 
somewhat  uncertain,  said  :  —  "It  seems 
to  me  the  first  question  was,  whether  the 


CH.  XII.] 


BAILMENT. 


614 


It  is  not  always  easy  to  determine  the  rights  and  obliga- 
tions of  the  parties,  when  the  workman  does  his  work  imper- 


identical  sheep,  if  they  survived,  were  to  be 
returned,  or  the  same  number  of  sheep,  and 
of  as  good  quality.    la  the  first  case,  the 
title  would  still  have  continued  in  the 
defendant  below,  with  the  right  to  as- 
sert it  when  the  period  of  letting  ex- 
pired.    If  the  terms  of  the  letting  were 
as  in  the  second  case,  or  in  the  alterna- 
tive, the  right  of  the   defendant  below 
rested  in  contract;  for  he  was  not  au- 
thorized to  claim  the  identical  sheep." 
Seymour  v.  Brown  was   not   cited   or 
alluded  to  either  by  the  counsel  or  the 
court  in  Hurd  v.  West,  but  the  reporter, 
in  a  learned  note,  in  which  he  discusses 
the  question,  considers   the  former  as 
substantially  overruled  by  the  latter,  and 
such  would  seem  to  be  the  case  from 
the  language  which  we  have  quoted. 
Afterwards,  in  1839,  the  precise  ques- 
tion passed  upon  in  Seymour  v.  Brown 
came  up  again  in  the  same  court,  in 
Smith  V.  Clark,  21  Wend.  83,  in  which 
tlie  former  case  was  considered  by  the 
court,  and  overruled.     Since  that  time 
the  courts  of  New  York  have  uniform- 
ly held  the  law  as  we  have  stated  in  the 
text.     See  Pierce  v.  Schenck,  3  Hill, 
28;  Baker  v.  Woodruff,  2  Barb.  520; 
S.  C.  nom.  Norton  v.  Woodruff',  2  Comst. 
153  ;  Mallory  v.  Willis,  4  Comst.  76. 
In  this  last  case,  the  rule  as  now  held 
was  very  clearly  stated  by  Bronson,  C. 
J.     "  The  distinction,"  says  he  "  which 
will  be  found  to  run  through   all  the 
authorities  on  this  subject,  with  the  ex- 
ception of  two  cases  which  have  been 
overruled,  is   this ;  when  the  identical 
thing  delivered,  though  in  an  altered 
form,  is  to  be  restored,  the  contract  is 
one  of  bailment,  and  the  title  to  the 
property  is   not  changed.     But  when 
there  is  obligation  to  restore  the  specific 
article,  and  the  receiver  is  at  liberty  to 
return  another  thing  of  equal  value,  he 
becomes  a  debtor  to  make  the  return, 
and  the  title  to  the  property  is  changed  ; 
it  is  a  sale."     The  same  doctrine  is  held 
in  the  late  cases  of  Wadsworth  v.  AU- 
cott,  2  Seklen,  64 ;  Foster  v.  Pettibone, 
3   Selden,  433;  Chase  v.  Washburn,  1 
Ohio  Stiitc  Reps.   244.     A  similar  rule 
was  laid  down  in  Euftam  v.  Merry,  3 
Mason,  478.     In  that  case  A.  delivered 
yarn  to  15.,  on  a  contract  that  the  same 
should  be  manufactured  into  plaids.    B. 
was  to  find  the  fdling,  and  was  to  weave 


so  many  yards  of  the  plaids  at  15  cents 
per  yard,  as  were  equal  to  the  value  of 
the  yarn  at  65  cents  per  pound.  It  was 
held  that  by  the  delivery  of  the  yarn  to 
B.  the  property  thereof  vested  in  him. 
On  the  other  hand,  in  King  v.  Hum- 
phreys, 10  Barr,  217,  where  rags  were 
delivered  by  the  plaintiff  to  the  defend- 
ant at  a  certain  price,  under  a  special 
contract,  to  be  made  into  paper,  wliich 
was  to  be  returned  at  a  certain  price  — 
the  difference  to  be  paid  by  a  note ;  and 
paper  was  manufactured  out  of  the 
identical  rags  ;  it  was  held  that  the  pro- 
perty in  the  rags  and  paper  continued 
in  the  plaintiff.  But  it  appeared  that 
this  was  the  usual  mode  in  which  the 
trade  made  contracts  for  working  rags 
into  paper ;  and  the  court  seem  to  put 
their  decision  upon  the  ground  that 
the  plaintiff  was  entitled  to  receive  the 
paper  made  of  the  identical  rags  deli- 
vered. If  this  was  the  ground  of  the 
decision,  the  case  does  not  conflict  with 
wliat  we  have  stated  to  be  the  establish- 
ed rule ;  the  question  in  the  case  was 
one  of  construction,  and  it  resembled  in 
this  respect  the  case  of  Mallory  r.  Wil- 
lis, already  cited.  In  that  case  the 
plaintiff'  agreed  to  deliver  good  mer- 
chantable wheat  at  a  flouring  mill  car- 
ried on  by  the  defendant,  "  to  be  manu- 
fiictured  "into  flour."  The  defendant 
agreed  to  deliver  196  pounds  of  super- 
fine flour,  packed  in  barrels  to  be  fur- 
nished by  the  plaintift',  for  every  four 
bushels  and  fifteen  pounds  of  wheat. 
He  was  to  be  paid  sixteen  cents  per 
barrel,  and  two  cents  exti-a,  in  case  the 
plaintiff  made  one  shilling  net  profit  on 
each  barrel  of  flour.  The  defendant  was 
to  guarantee  the  inspection.  The  plain- 
tiff was  to  have  the  "ofialls  or  feed," 
which  the  defendant  was  to  store  until 
sold.  It  was  held  that  the  contract  im- 
ported a  bailment  of  the  wheat,  and  not 
a  sale,  and  therefore  that  the  plaintiff 
might  maintain  replevin  for  a  jxjrtion 
of  the  flour  manufactured  from  the 
wlicat  delivered  imder  the  contract. 
But  Bronso7t,  C.  J.,  and  Harris,  J.,  dis- 
sented from  the  judgment  of  the  court, 
and  delivered  able  ojiinions.  There 
was  no  difference  of  opinion,  however, 
among  the  members  of  the  court,  as  to 
the  general  rule  ;  the  only  question  be- 
tween them  was  one  of  construction. — 

[635] 


615 


THE   LAW   OF   CONTRACTS. 


[book   III. 


fectly,  or  in  a  manner  different  from  that  desired,  or  leaves 
it  unfinished.     The  difficulty  is  in  the  application  of  the  prin- 


A  question  somewhat  similar  to  the 
one  that  we  have  been  considering 
arises  wliere  materials  arc  delivered  to 
he  worked  up  at  the  shares,  as  it  is 
termed.  But  in  that  case  it  is  held  that 
the  contract  is  one  of  bailment,  and  not 
of  sale.  The  question  arose  in  Pierce 
V.  Schenck,  3  Hill,  28.  Logs  were  de- 
livered by  the  plaintiff  at  the  defend- 
ant's saw-mill,  under  a  contract  with 
the  defendant  that  he  should  saw  them 
into  boards  within  a  specified  time,  and 
that  each  party  should  have  one  half  of 
the  boards.  It  was  held  that  the  trans- 
action enured  as  a  bailment  merely, 
and  that  the  bailor  retained  his  general 
property  in  the  logs  till  all  were  manu- 
factured pursuant  to  the  contract.  And 
Cowen,  J.,  said:  —  "The  plaintiff  de- 
livered his  logs  to  the  defendant,  who 
was  a  miller,  to  be  manufactured  into 
boards  —  a  specific  purpose  from  which 
he  had  no  right  to  depart.  On  com- 
pleting the  manufacture  he  was  to  re- 
turn the  specific  boards,  deducting  one 
half  as  a  compensation  for  his  labor. 
It  is  like  the  case  of  sending  grain  to  a 
mill  for  the  purpose  of  being  ground, 
allowing  the  miller  to  take  such  a  share 
of  it  for  toll.  This  is  not  a  contract  of 
sale,  but  of  bailment — locatio  operis  fa- 
ciendi.  The  bailor  retains  his  general 
property  in  the  whole  till  the  manufac- 
ture is  completed ;  and  in  the  whole 
afterwards  minus  the  toll.  The  share 
to  be  allowed  is  but  a  compensation  for 
the  labor  of  the  manufacturer,  whether 
it  be  one  tenth  or  one  half.  Thus,  in 
Collins  V.  Forbes,  3  T.  R.  316,  it  ap- 
peared that  Forbes  furnished  cei'tain 
timber  to  one  Kent,  which  the  latter 
was  to  work  up  into  a  stage  for  the 
commissioners  of  the  victualling  office, 
he  to  receive  one  fourth  of  the  clear 
profit  and  a  guinea  per  week,  on  the 
■work  being  done.  This  was  holden  to 
be  a  bailment  by  Forbes.  So  in  Bar- 
ker V.  Eoberts,  8  Greenl.  101,  A. 
agreed  to  take  B.'s  logs,  saw  them  into 
boards,  and  return  them  to  B.,  who  was 
to  sell  them  and  allow  to  A.  all  they 
brought  beyond  so  much.  This  was 
held  to  be  a  bailment,  and  not  a  sale, 
though  it  was  expressly  agreed  that  the 
logs  should  remain  all  the  while  at  A.'s 
risk.  A  having  sold  the  logs  instead 
of  sawing  them,  B.  was  allowed  to  rc- 

[636] 


cover  their  value  against  A.'s  vendee. 
What  difference  is  there  in  principle  be- 
tween an  agreement  by  the  owner  to 
pay  a  share  of  the  avails  in  money,  and 
in  a  part  of  the  specific  thing  ]  Either 
is  but  a  compensation  for  his  labor.  .  . 
I  have  been  unable  to  see  any  differ- 
ence in  the  nature  of  the  contract,  whe- 
ther there  be  an  obligation  to  restore 
the  whole,  or  only  a  part  of  the  specific 
thing.  The  owner  of  the  goods  may 
reserve  the  general  ownership  in  the 
whole  or  in  any  part,  as  he  pleases  ; 
and  he  can  with  no  more  propriety  be 
said,  pro  tanto  at  least,  to  have  parted 
with  it  in  the  latter  case  than  in  the 
former." — We  have  already  had  occa- 
sion to  refer  to  Hurd  ;;.  West,  7  Cow. 
752.  Perhaps  that  case  deserves  some 
further  notice.  It  was  ruled  in  that 
case,  as  we  have  seen,  that  Avhere  one 
lets  chattels  for  hire,  with  an  agreement 
on  the  part  of  the  bailee,  in  the  alterna- 
tive^ either  to  return  the  specific  chat- 
tels, or  others  of  a  similar  quality ;  that 
such  a  transaction  amounts  not  to  a 
bailment,  but  to  a  sale.  The  Supreme 
Court  of  Vermont  have,  however,  in  a 
series  of  cases,  and  after  much  con- 
sideration, decided  the  same  point  the 
other  way.  The  question  arose  for  the 
first  time,  we  believe,  in  the  latter  State, 
in  the  case  of  Grant  v.  King,  14  Verm. 
367.  There  the  owner  of  cattle  leased 
them,  with  a  farm,  for  four  years,  under 
an  agreement  that,  at  the  expiration  of 
the  four  years,  the  lessee  might  either 
return  the  cattle  or  pay  a  stipulated 
price  for  them.  The  lessee  sold  the 
cattle  before  the  four  years  had  expired. 
And  it  was  held  that  the  lessor  might 
maintain  trover  for  them  against  both 
seller  and  purchaser.  The  same  ques- 
tion arose  again  in  Smith  v.  Niles,  20 
Verm.  315,  and  in  Downer  v.  Eowell, 
22  Verm.  347,  and  was  decided  the 
same  way.  In  the  latter  case,  the  plain- 
tiff delivered  to  the  defendant  certain 
sheep,  and  the  defendant  executed  a 
receipt  therefor,  in  which  he  agreed  to 
keep  the  sheep,  or  cause  them  to  be 
kept,  "  the  full  term  of  three  years,  and 
return  the  same,  or  others  in  their  place 
as  good  as  they  are."  Held,  that  this 
was  not  a  sale  of  sheep  to  the  defend- 
ant, nor  a  bailment  with  power  to  sell, 
but  that  it  was  a  bailment  of  the  pro- 


CH.   XII.]  BAILMENT.  616 

ciples  of  law  to  the  facts,  rather  than  in  ascertaining  those 
principles.     We  think  they  may  be  stated  thus. 

If  the  workman,  by  a  deviation  from  his  instructions, 
makes  his  work  of  no  use,  he  can  claim  no  compensation.  If 
the  article  be  still  of  .some  use,  and  be  received  by  the  em- 
ployer, the  workman  may  claim  pro  tanto;  but  his  claim  is 
open  to  a  set-off  or  cross  action  for  any  demand  the  employer 
may  have  for  damages  sustained  by  the  deviation.  If  the 
work  be  done  by  special  contract,  and  there  be  a  departure 
from  its  terms,  the  workman  can  recover  nothing  under  the 
contract ;  but  may  on  a  quantum  meruit^  if  his  labor  was  use- 
ful to  his  employer  and  its  benefit  accepted,  but  subject  to  set- 
off as  before.  And  undoubtedly,  if  the  deviation  be  import- 
ant, and  the  materials  have  been  so  used  as  to  have  lost 
their  value  as  such,  the  employer  may  abandon  them  to  the 
workman,  and  recover  of  him  their  value.  So  if  the  thing 
be  left  imperfect  and  unfinished,  by  the  fault  of  the  work- 
man, he  can  recover  nothing ;  but  if  not  by  his  fault,  then  he 
should  have  compensation  pro  tanto,  subject  to  set-off.  And 
if  the  contract  be  rescinded  by  the  act  or  assent  of  both  par- 
ties, then  the  workman  may  recover  pro  tanto.  If  the  devia- 
tion be  such  as   makes  the  thing  more  valuable  and  more 


perty  for  a  certain  period,  with  a  stipu-  case  of  Seymour  v.  Brown,  19  Johns, 
lation  for  its  return  at  the  expiration  of  44, — which  hist  case  is  said  to  be  over- 
the  bailment ;  and  that  the  property  in  ruled.  Which  of  tiie  two  cases  is  the 
the  sheep  would  not  vest  in  the  bailee,  better  law  I  do  not  deem  it  necessary 
until  he  had  performed  his  part  of  the  to  inquire,  as  I  think  the  case  at  bar 
agreement,  by  returning  to  the  plaintiff  must  be  controlled  by  the  decisions  of 
other  sheep  of  equal  quality ;  and  that,  our  own  court.  It  is  analogous  to  the 
for  a  conversion  of  the  sheep,  the  plain-  case  of  Smith  v.  Niles,  and  I  think  in 
tiff  could  sustain  an  action  of  trorer.  principle  cannot  be  distinguished  from 
And  Kellogg,  J.,  having  cited  and  com-  it.  It  may  he  asked,  if  the  property  at 
raented  upon  Grant  v.  King  and  Smith  the  time  of  the  bailment  docs  not  pass, 
V.  Niles,  said: — "We  arc  aware  that  when  does  it  vest  in  the  bailee?  We 
the  case  of  Hurd  v.  AVest,  7  Cow.  7. '32,  answer  certainly  not  until  the  bailee  per- 
cited  at  the  argument,  is  opposed  to  the  forms  his  part  of  the  contract,  by  re- 
view which  we  take  of  the  case  before  turning  other  sheep  of  equal  goodness, 
us.  There  the  court  seem  to  consider  That  sufficiently  secures  to  tlic  bailor 
that  the  alternative  words  in  the  con-  a  return  of  the  property  bailed,  and 
tract  determine  its  character, — that  the  affords  to  the  bailee  all  that  ho  could 
right  of  the  party  to  return  other  sheep  claim,  upon  the  most  liberal  construc- 
of  equal  value  makes  the  contract  ope-  tion  of  the  contract.  This  construction 
rate  as  a  sale,  —  that  such  is  the  legal  of  the  contract  is  most  beneficial  to  the 
effect  of  the  contract,  and  that  upon  the  defendant,  and  carries  into  effect,  we 
delivery  of  the  property  it  vests  in  the  think,  the  obvious  intention  of  the  par- 
bailee,  or  vendee.  This  decision  is  ad-  ties." 
mittcd  to  be  in  direct  conflict  with  the 

VOL.  I.  54  [637] 


617  *  THE  LAW  OF  CONTRACTS.         [BOOK  III. 

costly,  the  workman  cannot  recover  for  this  additional  cost, 
unless  the  employer  assented  thereto.  (/) 

In  this  last  case,  and  in  some  others,  it  is  often  important 
and  difficult  to  determine  what  is  an  assent  on  the  part  of 
the  employer,  and  what  assent  is  sufficient.  (?n)  Knowledge 
*  and  silence  might  be  considered  so,  if  a  knowledge  of  the 
deviation  existed  while  it  was  going  on,  and  the  employer 
could  put  a  stop  to  it.  But  not  if  only  known  afterwards, 
and  when  too  late  to  prevent  or  arrest  the  alteration.  It 
would  certainly  be  safer  and  more  just  for  the  employer  to 
signify  his  disapprobation  as  soon  as  possible  ;  and  his  not 
doing  so  would  be  a  circumstance,  which,  connected  with 
others,  as  directing  other  alterations  in  conformity,  and  the 
like,  might  lead  to  an  inference  that  he  assented  to  and 
adopted  the  alteration. 

Contracts  for  work  and  labor  in  making  some  article  fre- 
quently contain  a  provision,  that  if  there  be  alterations  made 
with  the  assent  of  both  parties,  such  alterations  shall  be  paid 
for  or  allowed  for  at  the  same  rate  of  payment  as  that  pro- 
vided by  the  contract  for  the  work  it  specifies  ;  and  we  think 
that  such  would  be  the  operation  of  law,  without  an  express 
stipulation,  (n) 

A  workman  employed  to  make  up  materials,  or  to  alter  or 
repair  a  specific  article,  has  a  lien  upon  the  materials  of  the 
thing  for  his  pay.  (o) 

(/)  The  principles  stated  above  in  our  So  in  Morgan  v.   Congdon,  4  Comst. 

text  are  not  peculiar  to  the  contract  551,  it  is  held  that  every  bailee  for  hire, 

of  which  we  are  now  treating.     They  who  by  his  labor  or  skill  imparts  addi- 

apply  equally  to  several  other  species  tional  value  to  the   goods,  has  a  lien 

of  contracts ;  and  we  have  already  had  thereon  for  his  charges,  there  being  no 

occasion  to  consider  them  somewhat  in  special  contract  inconsistent  with  such 

our  chapter  on  the  hiring  of  persons,  lien.    And  such  lien  extends  to  all  the 

We  shall  defer  their  farther  considera-  goods  delivered  under  one  contract,  and 

tion  and  the  citation  of  cases  until  we  is  not  confined  to  the  particular  portion 

come  to  the  chapter  on  Construction,  in  on  which  the  labor  has  been  bestowed. 

our  second  volume.  Accordingly,  where  a  quantity  of  logs 

(/«)  See  Lovelock,  v.  King,  1  M.  &  were  delivered  on  different  days  at  the 

Rob.  60.     See  also  anie,  pp.  540- 542.  defendant's   saw-mill,  upon   an    agree- 

(?i)  See  ante,  p.  542,  and  note  {g).  ment  to  saw  the  whole  quantity  into 

(o)  M'Intyre  v.  Carver,  2  W.  &  S.  boards,  and  the  defendant  sawed  a  part 

392.      In  this  case  it  is   decided  that  of  them,  and  delivered  the  boards  to  the 

every  bailee,  who  has  by  his  labor  and  bailor,  without  being  paid  for  the  ser- 

skill  conferred  value  upon  specific  chat-  vice ;  it  was  held  that  he  had  a  lien  for 

tels  bailed  to  him,  has  a  particular  lien  the  amount  of  his  account  upon  the 

on  them  ;  but  such  lien  does  not  exist  residue  of  the  logs  in  his  possession, 

in  favor  of  a  journe)Tnan  or  day-laborer.  And  the  care,  skill,  and  labor  employed 

[638] 


CH.   XII.] 


BAILMENT. 


618 


Warehouse-men.  This  is  also  a  contract  for  mutual  bene- 
fit; and  the  bailee  is  therefore  only  held  to  ordinary  dili- 
gence, (p)  The  forwarding  merchants  of  this  country  are 
*only  subject  to  the  liabilities  of  warehouse-men,  (q)   unless 


by  a  trainer  upon  a  race  horse  give  him 
a  right  of"  lien,  but  he  waives  this  lien 
by  contracting  to  allow  the  owner  of  the 
horse  to  take  it  for  racing  whenever  he 
chooses.  Forth  v.  Simpson,  13  Q.  B. 
680. 

(p)  Chenowith  v,  Dickinson,  8  B. 
Monr.  156  ;  Foote  v.  Storrs,  2  Barb. 
326;  Hatchett  v.  Gibson,  13  Ala.  587; 
CailifF  v.  Danvers,  Peake's  Cas.  114; 
Piatt  V.  Hibbard,  7  Cow.  497 ;  Knapp 
V.  Curtis,  9  Wend.  60.  But  if  an  un- 
common or  unexpected  danger  arise,  he 
must  use  efforts  proportioned  to  the 
emergency  to  ward  it  off.  Leek  v. 
Maestaer,  1  Camp.  138.  In  this  case 
the  defendant  was  the  propi"ietor  of  a 
dry-dock,  the  gates  of  which  were  burst 
open  by  an  uncommonly  high  tide,  and 
the  plaintiff's  ship,  which  was  lying 
there,  forced  against  another  ship  and 
injured.  It  was  sworn,  that  with  a  suf- 
ficient number  of  hands  the  gates  might 
have  been  shored  up  in  time  so  as  to 
bear  the  pressure  of  the  water  ;  and, 
though  the  defendant  offered  to  prove 
that  they  were  in  a  perfectly  sound 
state.  Lord  Ellenhorough  held  that  it  was 
his  duty  to  have  had  a  sufficient  number 
of  men  in  the  dock  to  take  measures  of 
precaution  when  the  danger  was  ap- 
proaching, and  that  he  was  clearly  an- 
swerable for  the  effects  of  the  deficiency. 
So  a  wharfinger  who  takes  upon  him 
the  mooring  and  stationing  of  the  ves- 
sels at  his  wharf  is  liable  for  any  acci- 
dent occasioned  by  his  negligent  moor- 
ing. Wood  V.  Curling,  15>I.  &  W.626, 
16  Id.  628. —  The  same  rule  applies  to 
an  agister  of  cattle.  Broadwater  v. 
Blot,  Holt,  N.  P.  547. 

(q)  Roberts  v.  Turner,  12  Johns.  232. 
This  is  a  very  important  case  on  the 
liability  oi  forwarding  merchants.  It  was 
an  action  on  the  case  against  the  de- 
fendant as  a  common-carrier.  The  de- 
fendant resided  at  Utica,  and  pursued 
the  business  oi  forwarding  merchandise 
and  produce  from  Utica  to  Schenectady 
and  Albany.  It  appeared  that  the  course 
of  business  was,  for  the  forwarder  to 
receive  the  merchandise  or  produce  at 
his  store,  and  send  it  by  the  boatmen 
who  transported  goods  on  the  Mohawk 


river,  or  by  wagons  to  Schenectady  or 
Albany,  for  which  he  was  paid  at  a  cer- 
tain rate  per  barrel,  &c. ;  and  his  com- 
pensation consisted  in  the  difference 
between  the  sum  which  he  was  obliged 
to  pay,  and  that  which  he  received  from 
the  owner  of  the  goods.  The  defendant 
received  from  the  plaintiff,  who  resided 
in  Cazenovia,  in  Madison  county,  by 
one  Aldrich,  his  agent,  twelve  barrels 
of  pot  ashes,  to  be  forwarded  to  Albany 
to  one  Trotter ;  the  ashes  were  put  on 
board  a  boat,  to  be  carried  down  the 
Mohawk  to  Schenectady,  and,  while 
proceeding  down  the  river,  the  boat 
ran  against  a  bridge  and  sunk,  and  the 
ashes  were  thereby  lost.  The  defend- 
ant's price  for  forwarding  to  Schenec- 
tady was  twelve  shillings  per  barrel, 
and  the  price  which  he  had  agreed  to 
pay  for  transporting  the  goods  in  ques- 
tion to  that  place  was  eleven  shillings"; 
he  had  no  interest  in  the  freight  of  the 
goods,  and  was  not  concerned  as  an 
owner  in  the  boats  employed  in  the  car- 
riage of  merchandise.  The  judge  being 
of  opinion  that  these  facts  did  not  make 
the  defendant  a  common-carrier,  non- 
suited the  plaintiff;  and  a  motion  having 
been  made  to  set  the  nonsuit  aside, 
Spencer,  J.,  said :  —  "  On  the  fullest  re- 
flection, I  perceive  no  grounds  for 
changing  the  opinion  expressed  at  the 
circuit.  The  defendant  is  in  no  sense 
a  common-carrier,  either  from  the  na- 
ture of  his  business,  or  any  community 
of  interest  with  the  carrier.  Aldrich, 
who,  as  the  agent  of  the  plaintiff,  deli- 
vered the  ashes  in  question  to  tiic  de- 
fendant, states  the  defendant  to  be  a 
forwarder  of  merchandise  and  produce 
from  Utica  to  Schenectady  and  Albany; 
and  that  he  delivered  the  ashes,  with  in- 
structions from  the  plaintiff  to  send 
them  to  Col.  Trotter.  The  case  of  a 
carrier  stands  upon  peculiar  grounds. 
He  is  held  responsible  as  an  insurer  of 
the  goods,  to  prevent  combinations,  chi- 
canery, and  fraud.  To  extend  this 
rigorous  law  to  persons  standing  in  the 
defendant's  situation,  it  seems  to  rae, 
would  be  unjust  and  unreasonable.  The 
plaintiff  knew,  or  might  have  known, 
(for  his  agent  knew,)  that  the  defcnd- 

[639] 


619 


THE  LAW  OF   CONTRACTS. 


[book   III. 


they  act  also  as  common-carriers,  in  which  case  they  come 
*  under  the  peculiar  rules  to  be  hereafter  noticed.  It  may 
sometimes  be  difficult  to  determine  in  which  capacity  such  a 
person  acted  at  the  time  of  the  loss.  But,  in  general,  the 
rule  is,  that  if  the  transit  had  terminated,  and  the  bailee  was 
only  under  an  engagement  to  forward  the  goods  by  another 
carrier,  he  is  only  a  warehouse-man.  (r)  Nor  will  it  cause 
him  to  continue  to  be  a  common-carrier  until  the  next  car- 
rier receives  the  goods,  that  he  has  no  distinct  compensation 
as  warehouse-man.  (5)  But  if  the  goods  are  housed  by  the 
carrier  between  the  termini  of  his  transit,  they  are  still  under 
his  charge  as  carrier,  {t)  And  if  he  pays  the  warehouse  rent 
to  another  person,  he  is  still  liable  as  carrier,  if  his  duty  have 
not  terminated,  and  he  is  bound  by  the  contract  or  the  usage 


ant  had  no  interest  in  the  freight  of  the 
goods,  owned  no  part  of  the  boats  em- 
ployed in  the  carriage  of  goods,  and 
that  his  only  business  in  relation  to  the 
carriage  of  goods  consisted  in  forward- 
ing them.  That  a  person,  thus  circum- 
stanced, shoukl  be  deemed  an  insurer 
of  goods  forwarded  by  him,  an  insurer 
too  without  reward,  would,  in  my  judg- 
ment, be  not  only  without  a  precedent, 
but  against  all  legal  principles.  Lord 
Kenyon,  in  treating  of  the  liability  of  a 
carrier,  (5  T.  E.  394.)  makes  this  the 
criterion  to  determine  his  character ; 
whether,  at  the  time  when  the  accident 
happened,  the  goods  were  in  the  custody 
of  the  defendants  as  common-carriers. 
In  Gai-side  v.  The  Proprietors  of  the 
Trent  and  Mersey  Navigation,  4  T.  R. 
581,  the  defendants,  who  were  common- 
carriers,  undertook  to  carry  goods  from 
Stourport  to  Manchester,  and  from 
thence  to  be  forwarded  to  Stockport. 
The  goods  arrived  at  Manchester,  and 
were  put  into  the  defendants'  warehouse, 
and  burnt  up  before  an  opportunity  ar- 
rived to  forward  them.  Lord  Kenyon 
held  the  defendants'  character  of  carriers 
ceased  when  the  goods  were  put  into 
the  warehouse.  This  case  is  an  author- 
ity for  saying,  that  the  responsibilities 
of  a  common-carrier  and  forwarder  of 
goods  rest  on  very  different  principles. 
In  the  present  case  the  defendant  per- 
formed his  whole  undertaking ;  he  gave 
the  ashes  in  charge  to  an  experienced 
and  faithful  boatman.   It  has  been  urged 

[640] 


that  the  defendant  derived  a  benefit 
from  the  carriage  of  the  goods,  in  re- 
ceiving cash  from  the  owners  of  produce, 
and  paying  the  boatmen  in  goods,  and 
also  in  charging  more  than  he  actually 
paid.  The  latter  suggestion  is  doubted 
in  point  of  fact ;  but  admitting  the  facts 
to  be  so,  these  are  advantages  derived 
from  the  defendant's  situation  as  a  ware- 
house keeper  and  forwarder  of  goods, 
and  by  no  means  implicate  him  as  a 
carrier ;  for  surely  the  defendant  is  en- 
titled to  some  remuneration  for  the 
trouble  in  storing  and  forwarding  goods. 
In  any  and  every  point  of  view,  there  is 
not  the  least  pretext  for  charging  the 
defendant  with  this  loss  as  a  common- 
carrier." 

(r)  Garside  v.  Trent  and  Mersey  Na- 
vigation, 4  T.  R.  581.  In  this  cas'e  the 
defendants,  being  common-carriers  be- 
tween Stourport  and  Manchester,  re- 
ceived goods  from  the  plaintitF  at  Stour- 
port, to  be  carried  to  Manchester,  and 
to  be  forwarded  from  the  latter  place 
to  Stockport.  The  defendants  carried 
the  goods  to  Manchester,  and  there  put 
them  in  their  warehouse,  in  which  they 
were  destroyed  by  an  accidental  fire 
before  they  had  an  opportunity  of  for- 
warding them.  The  court  held  that 
they  were  not  answerable  for  the  loss. 
See  also  Brown  v.  Denison,  2  Wend. 
593 ;  Ackley  v.  Kellogg,  8  Cow.  223. 

(s)  See  Garside  v.  Trent  and  Mersey 
Navigation  Co.,  4  T.  R.  581. 

(t)  Forward  v.  Pittard,  1  T.  E.  27. 


CH.   XII.] 


BAILMENT. 


*620 


to  deliver  the  goods.  («)  But  if  he  is  only  bound  to  keep 
them  safely  until  the  consignee  or  owner  calls  for  thenn,  he  is 
then  only  a  warehouse-man,  although  the  goods  be  in  his  own 
store,  (v)  And  if  he  undertakes  to  forward  them  beyond  his 
*  own  route,  and  for  that  purpose  puts  them  into  a  suitable 
vehicle,  or  otherwise  disposes  of  them  in  a  proper  way  for 
that  purpose,  he  is  liable  only  for  negligence,  (w)  And  if  he 
receives  goods  as  warehouse-man  into  his  store  on  his  own 
wharf,  for  the  purpose  of  carrying  them  forward,  he  is  not 
liable  as  a  carrier  for  their  loss  until  their  transit  begins,  actu- 
ally or  constructively,  because  until  then  he  does  not  assume 
the  character  of  a  carrier,  (x) 

It  is  not  necessary  that  the  goods  be  housed  to  affect  the 
bailee  with  the  liabilities  of  a  warehouse-man.  It  is  enough 
if  they  are  actually  within  his  charge  and  custody  for  the 
purpose  of  being  housed,  (p) 


{«)  Hyde  v.  Trent  and  Mersey  Na- 
vigation, 5  T.  li.  389. 

(v)  Webb,  in  re,  8  Taunt.  443.  In 
this  case,  A.,  B.,  C,  and  D.,  in  part- 
nership as  carriers,  agreed  with  S.  & 
Co.,  of  Frome,  to  carry  goods  from 
London  to  Frome,  where  they  were  to 
be  deposited  in  a  wareliouse  belonging 
to  the  partnership  at  Frome,  where  A. 
resided,  without  any  charge  for  the 
warehouse-room,  till  it  should  be  con- 
venient for  S.  &  Co.  to  take  the  goods 
home.  Goods  of  S.  &  Co.,  carried  by 
the  partners  from  London  to  Frome, 
under  this  agreement,  were  deposited 
in  the  warehouse  at  the  latter  place, 
and  destroyed  by  lire.  It  was  held  that 
the  partners  were  not  liable  to  S.  &  Co. 
for  the  value  of  the  goods  burnt.  So 
in  the  case  of  Thomas  v.  The  Boston 
and  Providence  R.  R.  Corporation,  10 
Met.  472,  it  was  held  that  the  propri- 
etors of  a  railroad,  who  transport  goods 
over  their  road,  and  deposit  them  in 
their  warehouse  without  charge,  until 
the  owner  or  consignee  has  a  reasona- 
ble time  to  take  them  away,  are  not  lia- 
ble, as  common-carriers,  for  the  loss  of 
the  goods  from  the  warehouse,  but  are 
liable,  as  depositaries,  only  for  want  of 
ordinary  care. 

{iv)  Thus,  where  common-carriers  re- 
ceived goods  on  board  tlieir  sloop,  to 
transport  from  New  York  to  Troy, 
where  they  transferred  them  on  board 

54* 


of  a  canal  boat  bound  to  the  north, 
pursuant  to  the  bailor's  instructions ; 
but  were  to  receive  no  reward  for  the 
transfer  or  further  transportation ;  and 
the  goods  were  lost  by  the  upsetting  of 
the  canal  boat ;  it  was  held  that  their 
character  of  common-carriers  ceased  at 
Troy  ;  and  having  exercised  ordinary 
care  in  seeing  the  goods  placed  on 
board  a  safe  boat,  they  were  not  respon- 
sible for  the  loss.  Ackley  v.  Kellogg, 
8  Cow.  223. 

(x)  Piatt  V.  Ilibbard,  7  Cow.  497.  In 
White  V.  Humphery,  11  Q.  B.  43,  where 
the  plaintiff  deposited  hops  in  the  de- 
fendant's warehouse  to  be  conveyed  to 
Loudon  in  the  barges  of  the  defendant 
(who  was  also  a  carrier,)  whenever  the 
plaintiff  should  direct,  and  in  the  mean- 
time to  be  kept  by  the  defendant  with- 
out charge  for  warehousing,  it  was  held 
by  the  judge  at  nisi  priiis  that  the  ad- 
vantage of  carrying  the  hops  for  hire 
might  be  considered  as  payment  for  the 
warehousing,  and  that  the  defendant 
was  not,  therefore,  a  gratuitous  bailee, 
and  so  liable  only  for  gross  negligence  : 
and  the  Court  of  Queen's  Bench  refused 
to  grant  a  new  trial  on  the  ground  of 
misdirection. 

{y)  Thus  it  has  been  decided,  that  as 
soon  as  the  goods  arrive,  and  the  crane 
of  the  warehouse  is  applied  to  raise 
them  into  the  warehouse,  the  liability 
of  the  ■warehouse-man  commences  ;  and 

[641] 


621  *  THE   LAW   OF   CONTRACTS.  [BOOK  IH. 

As  to  the  obligation  of  the  warehouse-man  to  deliver  the 
goods  to  the  consignee,  or  redeliver  them  to  the  consignor,  in 
the  case  where  they  are  claimed  by  another  as  the  proper  owner 
who  forbids  such  delivery,  there  seems  to  be  some  uncertain- 
ty, (z)  *  We  take  the  law  to  be,  however,  that  he  must  decide 
for  himself  which  is  the  better  right,  and  is  exposed  to  loss  if  he 
decide  it  wrongly.  But  if  he  deliver  it  .to  the  original  bailor, 
or  his  consignee,  the  true  owner  should  not  recover  damages 
from  him  by  merely  proving  his  ownership  and  a  notice  to 
the  warehouse-man,  nor  unless  he  exhibit  to  the  warehouse- 
man such  proofs  as  might  reasonably  be  required  of  his 
ownership.  And  if  on  such  evidence  he  did  deliver  the  goods 
to  the  person  claiming  to  be  owner,  and  it  appeared  after- 
wards that  the  claim  was  unfounded,  the  original  bailor 
should  be  limited  in  his  recovery  to  the  strictest  compen- 
sation, if  the  warehouse-man  could  show  that  he  acted 
on  evidence  which  would  satisfy  a  cautious  and  honest 
man.  In  practice  it  is  usual  in  such  cases  to  demand  and 
receive  an  indemnity  from  the  party  put  in  possession  of  the 
woods. 

In  an  action  against  a  warehouse-man  to  recover  the  value 

it  is  no  defence  that  they  are  afterwards  fendant  for  the  purpose  of  defeating  an 
injured  by  falling  into  the  street  from  execution  against  the  plaintiff,  it  was 
the  breaking  of  the  tackle,  even  if  the  held  that  in  the  present  action  of  trover 
carman  who  brought  them  has  refused  the  defendant  might  set  up  the  title  of 
the  offer  of  slings  for  further  security,  a  previous  transferee  of  the  plaintiff  to 
Thomas  v.  Day,  4  Esp.  262.  defeat  the  plaintiff's  right  to  recover, 
(z)  In  Ogle  V.  Atkinson,  5  Taunt,  and  the  court  refer  to  Ogle  v.  Atkinson 
759  it  was  decided  that  a  warehouse-  as  in  point.  The  court  are  inclined  to 
man,  receiving  goods  from  a  consignee,  the  opinion  that  in  the  case  of  a  pledge 
who  has  had  actual  possession  of  them,  the  pledgee  may  set  up  the  jus  tertii  un- 
to be  kept  for  his  use,  may  nevertheless  less  he  has  made  an  absolute  agreement 
refuse  to  re-deliver  them,  if  they  are  the  to  give  up  the  property  to  the  party 
property  of  another.  But  several  sub-  pledging  it.  See  also  Bates  v.  Stanton, 
sequent  cases  have  established  that  a  1  Duer,  79;  Pitt  i\  Albritton,  12  Ire.  L. 
warehouse-man  cannot  dispute  the  title  77.  So  if  a  warehouse-man  delivers 
of  his  bailor,  or  of  any  other  person  the  goods  intrusted  to  him  to  a  wrong 
•whose  title  he  has  acknowledged,  in  an  person  by  mistake,  or  they  are  obtained 
action  brought  against  him  by  such  from  him  by  fraud,  as  by  a  forged  order, 
person.  See  Gosling  v.  Biruie,  7  Bing.  he  is  liable  to  his  bailor  for  their  value. 
339;  HoU  V.  Griffin,  10  Bing.  246;  Lubbock  v.  Inglis,  1  Stark.  104;  Wil- 
Kieran  v.  Sandars,  6  Ad.  &  El.  515;  lard  v.  Bridge,  4  Barb.  361.  On  the 
Harman  v.  Anderson,  2  Camp.  243  ;  other  hand,  if  the  goods  are  taken  from 
Stonard  v.  Dunkin,  Id.  344 ;  Burton  v.  the  possession  of  the  warehouse-man 
Wilkinson,  18  Verm.  186.  lu  the  late  by  the  authority  of  the  law,  this  con-- 
case,  however,  of  Cheesman  v.  Excell,  stitutes  a  good  defence  for  him  in  an 
4  E.  L.  «&  E.  438,  where  property  had  action  brought  against  him  by  his  bail- 
been  delivered  by  the  plaintiflf  to  the  de-  or.    Burtofl  v.  AYilkinson,  18  Verm.  186. 

[642] 


CH.   XII.]  BAILMENT.  *622 

of  lost  baggage,  the  owner  has  been  admitted  to  prove  the 
contents,  in  the  same  way  as  in  a  similar  action  against  a 
common-carrier;  but  this  privilege  is  strictly  confined  to  the 
ordinary  baggage  of  a  traveller,  (a) 

Wharfingers.  This  kind  of  bailment  is  quite  similar  to 
that  first  spoken  of,  and  the  rules  of  law  applicable  to  it  are 
much  the  same,  (b) 

It  has  been  somewhat  questioned  whether,  in  the  case  of 
depositaries  for  hire,  and  loss  or  injury  to  the  goods,  the  law 
casts  the  burden  of  proving  negligence  on  the  owner,  or  that 
of  proving  due  care  and  the  absence  of  negligence  on  the 
depositary.  We  have  considered  this  point  in  a  previous 
note,  (c)  and  the  cases  there  cited  show  that  the  decided 
weight  of  authority  is  in  favor  of  requiring  proof  of  negli- 
gence, on  the  ground  that  the  law  will  not  intend  any  wrong- 
doing. But  there  have  been  opposite  decisions  ;  and  courts 
which  adopt  this  rule  sometimes  regret  its  existence. 

The  wharfinger  has  a  lien  on  vessel  and  goods  for  his 
wharfage,  (d) 

Postmasters  might  be  regarded  as  depositaries  for  a  com- 
pensation, or  as  carriers ;  and  as  common-carriers,  because 
they  are  obliged  to  carry  for  all.  But  they  are  also  public 
officers;  receiving  their  appointments  and  their  compensa- 
tion from  the  State,  which  alone  regulates  and  directs  their 
duties.  Hence  they  come  under  a  different  obligation  and 
liability  from  that  of  ordinary  common-carriers.  The  post- 
master-general is  not  liable  for  loss,  although  it  be  caused  by 
the  negligence  of  his  servants.  The  law  was  so  established 
in  Lord  HoWs  time,  though  against  his  opinion,  in  the  case 
of  Lane  v.  Cotton;  (e)  and  that  case  has  been  considered  as 
law  ever  since.  (/)     But  it  should  seem,  from  general  prin- 

(a)  Clark  v.  Spencc,  10  Watts,  335.  riers.    But  it  is  very  doubtful  whether 

(6)  Piatt   V.  Ilibbard,  7    Cow.   497,  those  cases  justify  such  an  inference ; 

502,  n.  6;  Sidaways  v.  Todd,  2  Stark,  and  if  they  do,  they  cannot  now  be  con- 

400;  Foote  v.  Storrs,  2  Barb.  32G.     It  sidcred  as"  law. 

has  sometimes  been  inferred  from  the         (c)  See  ante,  p.  606,  n.  («.) 

cases  of  Ross  v.  Johnson,  5  Burr.  2825,        [d]  Johnson  v.  The   Schooner  Mc- 

and  Maving  v.  Todd,  I  Stark,  72,  that  Donough,  Gilpin,  101 ;  Lewis,  ex  parte, 

the  rule  as  to  the  liability  of  wharfingers  2  Gall.  483. 

was  different  from  what  we  have  stated,         (e)  1  Ld.  Eaym.  646,  12  Mod.  472. 

and  that  they  arc  held  to  the  same  de-        ( /')  Whitfield  v.  LeDespencer,  Cowp. 

grcc  of  responsibility  as  common-car-  754;  Schro^'cr  i'.  Lynch,  8  AV^atts,  453 ; 

[643] 


623' 


THE  LAW  OF   CONTRACTS. 


[book   III. 


ciples,  that  if  such  servant  were  wholly  incompetent,  and  the 
knowledge  of  the  incompetency  were  brought  home  to  the 
postmaster-general,  this  should  make  him  responsible;  and  if 
it  could  be  shown  that  the  servant  was  appointed  or  retained 
from  unworthy  motives  after  such  knowledge,  the  postmaster- 
general  ought  certainly  to  be  held  liable,  (g-)  His  deputies 
are  not  liable  except  for  loss  caused  by  their  own  fault  or 
negligence  ;  but  for  this  it  is  clear  that  they  are  liable,  (h) 
This  negligence  may  be  in  appointing  unfit  persons  to  sub- 
ordinate offices,  or  in  not  using  due  precautions  to  secure 
their  good  conduct;  for  each  deputy  postmaster  is  bound  to 
exercise  due  care  in  such  appointments,  and  due  watchfulness 
over  the  conduct  of  his  subordinates,  (i)  And  *it  would  seem 
that  the  postmaster-general  should  be  held  to  some  measure 
of  the  same  obligation. 

Innkeepers.  An  inn  has  been  judicially  defined  as  "  a 
house  where  the  traveller  is  furnished  with  every  thing  which 
he  has  occasion  for  whilst  upon  his  way."  (j)  There  need 
not  be  a  sign  to  make  it  an  inn.  (k)  But  a  mere  coffee- 
house, (Z)  or  eating-room,  or  boarding-house,  (U)  is  not  an 
inn.  (m) 


Supervisors  of  Albany  Co.  v.  Dorr,  25 
Wend.  440,  per  Nelson,  C.  J. ;  Wiggins 
V.  Hathaway,  6  Barb.  632 ;  Martin  v. 
The  Mayor  &c.  of  Brooklyn,  1  Hill, 
545,  per  Cowen,  J.  See  also  Dunlop 
V.  Munroe,  7  Cranch,  242.  And  in 
Cornwell  v.  Voorhees,  13  Ohio,  523, 
the  same  rule  was  applied  to  a  mail 
contractor.  Therefore,  where  money 
transmitted  by  mail  was  lost  by  the 
carelessness  of  the  contractors'  agents 
who  carried  the  mail,  the  court  held 
that  the  contractors  were  not  liable. 
The  case  of  Hutchins  v.  Brackett,  2 
Foster,  252,  is  to  the  same  effect. 

(<l)  See  authorities  cited  infra,  n.  (?.) 
(A)  Whitfield  v.  Le  Despencer,  Cowp. 
754 ;  Eowning  v.  Goodchild.  3  Wils. 
443  ;  Maxwell  v.  Mcllvoy,  2  Bibb,  211 ; 
Christy  v.  Smith,  23  Verm.  663.  See 
also  Bolan  v.  AVilliamson,  2  Bay,  551, 
1  Brev.  181. 

{i)  Schroyer  v.  Lynch,  8  Watts,  453; 
Wiggins  V.  Hathaway,  6  Barb.  632 ; 
Christy  v.  Smith,  23  Verm.  663.  And 
in  Bishop  v.  Williamson,  2  Fairf.  495, 
this  rule  was  applied  to  a  case  where  a 

[644] 


deputy  postmaster  had  employed  an 
assistant  without  having  an  oath  ad- 
ministered to  him,  as  was  required  by 
the  Statute  of  the  United  States.  Ac- 
cordingly, where  such  assistant  wrong- 
fully refused  to  deliver  a  letter  to  the 
plaintiff,  his  employer  was  held  liable  in 
damages.  See  also  Bolan  v.  William- 
son, 1  Brev.  181. 

(j)  Per  BayJey,  J.,  in  Thompson  v. 
Lacy,  3  B.  &  Aid.  283,  286. 

{k)  Bac.  Abr.  tit.  Inns  and  Innkeep- 
ers, (B.)  "  A  sign  is  not  essential  to  an 
inn,  but  is  an  evidence  of  it."  Per 
Holt,  C.  J.,  in  Parker  v.  Flint,  12  Mod. 
254. 

(/)  Doe  d.  Pitt  V.  Laming.  4  Camp.  73. 

(//)  This  was  directly  held  by  Erie,  J., 
in  Dancey  v.  Kichardson,  20  Law  Times 
Kep.  213. 

(m)  So  one  who  entertains  sti-angers 
occasionally,  although  he  receives  com- 
pensation for  it,  is  not  an  innkeeper. 
State  V.  Mathews,  2  Dev.  &  Bat.  424  ; 
Lyon  V.  Smith,  1  Morris,  [Iowa.]  184. 
So  it  has  been  held  that  a  housekeeper 
at  Tunbridge  or  Epsom,  or  other  wa- 


CH.  XII.] 


BAILMENT. 


624 


Public  policy  imposes  upon  an  innkeeper  a  severe  liability. 
The  latter,  and  on  the  whole,  prevailing  authorities,  make  him 
an  insurer  of  the  property  committed  to  his  care,  against  every 
thing  but  the  act  of  God,  or  the  public  enemy,  or  the  neglect 
or  fraud  of  the  owner  of  the  property,  {u)  He  would  then  be  lia- 
*ble  for  a  loss  occasioned  by  his  own  servants,  by  other  guests, 


tering  place,  who  lets  lodgings,  and  fur- 
nishes meat  and  drink,  and  provides 
stable  room,  for  the  company  who  re- 
sort there  for  health  or  pleasure,  is  not 
an  innkeeper.  Parkhouse  v.  Forster,  5 
Mod.  427  ;  s.  c.  nom.  Parkhurst  v. 
Foster,  Garth.  417,  1  Salk.  387.  And 
Lord  Holt  said  the  case  was  so  plain 
that  there  was  no  occasion  for  giving 
reasons.  See  also  Bonner  v.  Welborn, 
7  Geo.  296.  But  in  Thompson  v.  Lacy, 
3  B.  &  Aid.  283,  it  was  held  that  a 
house  of  public  entertainment  in  Lon- 
don, where  beds,  provisions,  &c.,  were 
furnished  for  all  persons  paying  for  the 
same,  but  which  was  merely  called  a 
tavern  and  coffee-house,  and  was  not 
frequented  by  stage  coaches  and  wagons 
from  the  country,  and  which  had  no 
stables  belonging  to  it,  was  to  be  con- 
sidered as  an  inn,  and  the  owner  was 
subject  to  the  liabilities  of  innkeepers, 
and  had  a  lien  on  the  goods  of  his  guest 
for  the  payment  of  his  bill,  and  that  too 
even  where  the  guest  did  not  appear  to 
have  been  a  traveller,  but  one  who  had 
previously  resided  in  furnished  lodgings 
in  London.  In  Wintermute  v.  Clarke, 
5  Sandf.  247,  the  court  say  tbat  in  order 
to  charge  a  party  as  an  innkeeper  it  is 
not  necessary  to  prove  that  it  was  only 
for  the  reception  of  travellers  that  his 
house  was  kept  open,  it  being  sufficient 
to  prove  that  all  who  came  were  re- 
ceived as  guests  without  any  previous 
agreement  as  to  the  time  or  terms  of 
their  stay.  A  public  house  of  enter- 
tainment for  all  who  choose  to  visit  it 
is  the  true  definition  of  an  inn. 

(it)  Mason  i-.  Thompson,  9  Pick.  280, 
per  Wilde,  J.;  Richmond  v.  Smith,  8 
B.  &  C.  9,  per  Barjley,  J. ;  Piper  v. 
Manny,  21  Wend.  282,  per  Nelson,  C. 
J. ;  Grinnell  v.  Cook,  3  Hill,  485,  per 
Bronson,  J.  ;  Manning  v.  Wells,  9 
Humph.  746 ;  Thickstun  v.  Howard,  8 
Blackf.  535 ;  Mateer  v.  Brown,  1  Calaf. 
221;  Shaw  v.  Berry,  31  Maine,  478. 
This  last  was  an  action  on  the  case 
against  the  defendant,  who  was  an  inn-- 
keeper,  for  an  injury  to  the  plaintiff's 


horse,  while  at  the  defendant's  stable. 
The  horse  was  placed  at  the  stable  in 
the  evening,  and  the  next  morning  one 
of  his  hind  legs  was  found  to  have  been 
broken  above  the  gambrel  joint.  The 
evidence  tended  to  show,  that  he  was 
treated  with  care  and  faithfulness ;  that 
he  was  placed  in  a  safe  and  suitable 
stall,  with  sufficient  and  suitable  bed- 
ding ;  and  that  the  injury  happened 
witiiout  the  fault  of  any  one.  The 
learned  judge,  before  whom  the  cause 
was  tried,  instructed  the  jury,  that  the 
rule  of  law  applicable  to  common  car- 
riers was  not  applicable  to  innholders  ; 
that  the  law,  in  case  of  injury  to  goods 
or  property  while  in  the  custody  of  the 
innkeeper,  presumed  it  to  have  happened 
through  his  negligence  or  fault,  and 
would  hold  him  responsible  for  it,  un- 
less he  could  prove  that  he  was  guilty 
of  no  fault ;  and  that  if  the  defendant 
had  proved  that  he  was  not  in  fault,  the 
action  could  not  be  maintained.  The 
case  was  carried  up  to  the  Supreme 
Court  on  exception  to  these  instruc- 
tions, and  that  court,  after  an  elaborate 
examination  of  the  authorities,  held  the 
instructions  to  be  incorrect ;  and  de- 
clared the  rule  of  law  to  be,  that  an 
innkeeper  is  bound  to  keep  the  goods 
and  chattels  of  his  guest  so  that  they 
shall  be  actually  safe ;  inevitable  acci- 
dents, the  acts  of  public  enemies,  the 
owners  of  the  goods  and  their  servants, 
excepted ;  and  that  proof  that  there  was 
no  negligence  in  the  innkeeper  or  his 
servants  was  not  sufficient  for  his  im- 
munity. It  must  be  confessed,  how- 
ever, tliat  two  recent  and  well-consider- 
ed cases  adopt  a  different  rule  on  this 
subject  from  that  stated  in  the  text,  and 
supported  by  the  authorities  just  cited. 
We  allude  to  Dawson  v.  Chamncy,  5 
Q.  B.  164,  and  Merritt  v.  Claghorn,  23 
Verm.  177.  Dawson  v.  Chamncy  was 
an  action  on  the  case  to  recover  dama- 
ges for  an  injury  to  the  plaintiff's  horse. 
It  appeared  that  the  defendant  was  an 
innkeeper;  that  the  plaintiff  gave  the 
horse  in  charge  to  the  defendant's  ost- 

[645] 


625^ 


THE  LAW   OF   CONTRACTS. 


[book  III. 


by  robbery  or  burglary  from  without  the  house,  or  by  rioters 
*or  mobs.     Nor  will  it  excuse  him,  if  he  were  sick,  insane,  or 


ler,  who  placed  him  in  a  stall  where 
there  was  another  horse ;  and  that  the 
injury  was  done  by  the  other  horse 
kicking  the  liorse  of  the  plaintiff.  The 
defendant  having  called  witnesses  to 
show  that  proper  care  had  been  taken 
of  the  horse,  the  learned  judge  directed 
the  jury  to  find  for  the  plaintiff,  if  they 
were  of  opinion  that  the  defendant,  by 
himself  or  servants,  had  been  guilty  of 
direct  injury,  or  of  negligence,  but 
otherwise  for  the  defendant.  The  jury 
found  a  verdict  for  the  defendant,  and 
the  Court  of  Queen's  Bench  held  the 
direction  proper.  This  decision  was 
considered  in  the  case  of  Mateer  v. 
Brown,  1  Calaf.  221.  The  court  adopt 
the  dictum  of  Mr.  Justice  Bayley  in 
Richmond  v.  Smith,  8  B.  &  C.  9,  that 
the  innkeeper  very  closely  resembles  a 
common-carrier  and  is  liable  for  any 
loss  not  occasioned  by  the  act  of  God 
or  the  king's  enemies,  except  where  the 
guest  chooses  to  have  the  goods  under 
his  own  care  ;  and  after  a  lengthy  and 
able  consideration  of  the  subject  they 
say  that  although  that  dictum  of  Mr. 
Justice  Baylej/s  has  been  overturned  in 
England  by  the  decision  of  Dawson  v. 
Chamnc)',  they  think  the  dictum  right 
and  the  decision  wrong.  The  case  of 
Merritt  v.  Claghorn  was  also  an  action 
on  the  case  to  recover  the  value  of  two 
horses,  a  double  harness,  two  horse 
blankets,  and  two  halters.  On  the 
trial,  it  was  conceded  that  the  defendant 
was  the  keeper  of  an  inn,  and  that  the 
agent  of  the  plaintiff  was  received  as  a 
guest  at  the  defendant's  inn,  with  the 
property  in  question,  belonging  to  the 
plaintiff;  and  that  the  horses  and  other 
property  were,  as  is  usual  in  such  cases, 
put  into  the  barn  of  the  defendant,  which 
was  a  part  of  the  premises,  and,  at  the 
usual  time  for  closing  the  stable,  the 
barn  was  locked  by  the  defendant;  and 
that  about  daylight  the  next  morning, 
and  while  the  property  was  thus  in  the 
custody  of  the  defendant,  as  an  inn- 
keeper, the  barn  was  discovered  to  be 
on  fire,  supposed  to  be  the  work  of  an 
incendiary,  and  the  horses  and  other 
property  were  burned  and  destroyed; 
and  that  there  was  no  negligence,  in 
point  of  fact,  in  the  defendant  or  his 
servants,  in  the  case  of  the  barn  and  of 
the  property  in  question.   On  these  facts, 

[646] 


the  court  held  that  the  plaintiff  was  not 
entitled  to  recover.  And  licdfield,  J.,  in 
giving  the  opinion  of  the  court,  said:  — 
"  The  case  finds  that  the  plaintiff's  loss 
was  without  any  negligence,  in  point  of 
fact,  in  the  defendant  or  his  servants. 
From  this  we  are  to  understand  that  no 
degree  of  diligence  on  his  part  could 
have  prevented  the  loss.  If,  then,  the 
defendant  is  liable,  it  must  be  for  a  loss 
happening  by  a  cause  beyond  his  con- 
trol. In  saying  this  we  have  reference 
only  to  the  highest  degree  of  what 
would  be  esteemed  reasonable  diligence, 
under  the  circumstances  known  to  ex- 
ist, before  the  fire  occurred.  We  are 
aware  that  it  would  doubtless  have  been 
possible,  by  human  means,  to  have  so 
vigilantly  guarded  these  buildings  as 
probably  to  have  prevented  the  fire. 
But  such  extreme  caution  in  remote 
country  towns  is  not  expected,  and  if 
practised,  as  a  general  thing,  must 
very  considerably  increase  charges  upon 
guests,  which  they  would  not  wish  to 
incur,  ordinarily,  for  the  remote  and 
possible  advantage  which  might  accrue 
to  them.  The  question,  then,  is.  Whe- 
ther the  defendant  is  liable?  Do  the 
authorities  justify  any  such  conclusion  1 
For  it  is  a  question  of  authority  merely. 
We  know  that  many  eminent  judges 
and  writers  upon  the  law  have  consi- 
dered that  innkeepers  are  liable  to  the 
same  extent  as  common-carriers.  It 
may  be  true,  that  the  cases  are  much 
alike  in  principle.  For  one,  I  should 
not  be  inclined  to  question  that.  But 
if  the  case  were  new,  it  is  certainly  not 
free  from  question  how  far  any  court 
would  feel  justified  in  holding  any  bailee 
liable  for  a  loss  like  the  present.  But 
in  regard  to  common-carriers,  the  law 
is  perfectly  well  settled,  and  they  con- 
tract with  the  full  knowledge  of  the  ex- 
tent of  their  liability,  and  demand  not 
only  pay  for  the  freight,  but  a  premium 
for  the  insurance,  and  may  re-insure,  if 
they  choose.  And  the  fact  that  car- 
riers are  thus  liable  no  doubt  often  in- 
duces the  owners  to  omit  insurance. 
But,  unless  the  law  has  already  affixed 
the  same  degree  of  extreme  liability  to 
the  case  of  inkeepers,  we  know  of  no 
grounds  of  policy  merely  which  would 
justify  a  court  in  so  holding."  After  a 
careful  examination  of  the  authorities. 


CH.  XII.] 


BAILMENT. 


^626 


absent  at  the  time  ;  for  he  is  bound  to  have  competent  ser- 
vants and  agents,  (o) 

But  it  is  a  good  defence  that  the  loss  was  caused  by  the 
servant  of  the  owner,  (/?)  or  by  one  who  came  with  him  as 
his  companion,  (q)  or  by  the  negligence  of  the  owner ;  (r) 
or  that  the  owner  retained  personally  and  exclusively  the 
*custody  of  his  goods,  (s)     It  is  not  enough  for  this,  however, 


the  learned  judge  concludes:  —  "It  is 
certain  no  well  considered  case  has  held 
the  innkeeper  liable  in  circumstances 
like  the  present.  And  no  principle  of 
reason,  or  policy,  or  justice,  requires, 
we  think,  any  such  result,  and  the  Eng- 
lish law  is  certainly  settled  otherwise." 
See  also  Metcalf  ?;.  Hess,  14  111.  129. 

(o)  Cross    V.    Andrews,    Cro.    Eliz. 
622. 

(p)  Cayle's  case,  8  Co.  Rep.  32. 
(q)  Ihid. 

(r)  Burgess  v.  Clements,  4  M.  &  S. 
306  ;  Armistead  v.  White,  6  E.  L.  & 
E.  349.  This  last  was  an  action  on 
the  case  for  the  loss  of  money,  which 
the  plaintiff  brought  with  him  to  the 
defendant's  inn.  On  the  trial,  it  ap- 
peared that  the  plaintiff  was  a  commer- 
cial traveller,  who  had  frequented  the 
defendant's  inn  for  twenty  years.  On 
the  evening  of  the  night  in  which  the 
money  was  stolen  from  tlie  plaintiff's 
driving  box,  he  had  opened  the  box 
and  counted  over  the  bank  notes  in  the 
presence  of  many  persons  in  the  com- 
mercial room,  as  he  had  also  done  on 
several  days  before,  and  after  replacing 
them  in  the  box  he  left  it  in  that  room 
all  night,  as  he  had  been  accustomed  to 
do  ;  it  was  the  custom  of  travellers  to 
leave  their  driving  boxes  in  the  com- 
mercial room  during  the  night.  The 
box  was  so  insecurely  fastened  that  it 
might  be  opened  without  a  key,  by 
pushing  back  the  lock.  The  learned 
judge,  in  summing  up  to  the  jury,  said 
that  by  the  custom  of  England  an  inn- 
keeper was  bound  to  keep  the  goods  of 
his  guest  safely;  but  that  a  guest  might, 
by  gross  negligence,  relieve  the  inn- 
keeper from  his  liability ;  and  that  if  they 
thought  that  a  prudent  man  would  have 
taken  the  box  with  him  to  his  bedroom, 
or  given  it  into  the  express  custody  of  the 
defendant,  they  might  find  a  verdict  for 
the  defendant ;  and  left  it  as  a  question 
for  them  whether  the  plaintiff  was  guilty 
of  gross   negligence  in   the   traveller's 


room,  or  whether  they  were  satisfied  on 
the  evidence  that  the  plaintiff  had  acted 
with  ordinary  caution.  The  jury  found 
a  verdict  for  the  defendant.  And  a 
rule  having  been  obtained  for  a  new 
trial,  on  the  ground  of  misdirection. 
Lord  Campbell,  C.  J.,  said :  — "I  am  of 
opinion  that  the  rule  should  be  dis- 
charged. If  the  judge  had  intimated 
that  it  was  the  duty  of  the  plaintiff  to 
withdraw  the  box  from  the  commercial 
room,  and  carry  it  with  him  into  his 
bed  chamber,  and  that,  not  having  done 
so,  he  had  lost  his  claim  upon  the  de- 
fendant, that  would  have  been  a  mis- 
direction. But  there  is  no  misdirection 
in  what  he  has  reported  to  us.  It  must 
be  taken  that  he  left  the  question  to  the 
jury  under  all  the  circumstances  of  the 
case  ;  and  it  is  not  possible  to  say,  as  a 
matter  of  law,  that  a  traveller  might 
not  be  guilty  of  negligence,  under  some 
circumstances,  in  leaving  a  box  con- 
taining money  in  the  commercial  room; 
and  in  this  case  I  think  that  there  was 
strong  evidence  from  which  the  jury 
were  justified  in  finding  that  tlie  plain- 
tiff was  guilty  of  gross  negligence.  In- 
deed, it  is  questionable  whether  the  di- 
rection was  not  too  favorable  for  the 
plaintiff,  because  it  is  doubtful  whether, 
in  order  to  relieve  the  innkeeper  from  his 
liability,  there  must  be  nassa  neijligentia 
in  the  guest." 

(s)  Farnworth  et  al.  assignees  of  Kir- 
ton,  a  bankrupt,  v.  Packwood,  1  Stark. 
249.  It  appeared  in  this  case  that  Kir- 
ton  came  to  the  house  of  the  defendant, 
an  innkeeper,  and  in  the  course  of  three 
or  four  days  afterwards  applied  to  the 
defendant  for  a  private  room,  for  the 
purpose  of  depositing  goods  there,  and 
exposing  them  for  sale ;  and  the  de- 
fendant having  shown  him  a  small 
room,  which  he  approved  of,  Kirton  the 
next  day  took  possession  of  it,  and  the 
key  was  delivered  to  him,  and  was  kept 
by  him  exclusively  for  several  days  ; 
but,  upon  tlie  defendant's  wife  request- 

[G47] 


627 


THE   LAW   OF   CONTRACTS. 


[book  III. 


that  he  exercised  some  choice  as  to  the  room  where  they 
should  be  placed,  (t)  or  that  the  key  of  the  room  was  deliver- 
ed to  him.  (u)  The  owner  may  still  recover,  even  if  he  does 
not  use  the  key,  but  leaves  the  door  unlocked,  (v)  But  an 
innkeeper  may  require  of  his  guest  to  place  his  goods  in  a 
particular  place,  and  under  lock  and  key,  or  he  will  not  be 
answerable.  And  if  these  precautions  are  reasonable,  and 
the  guest  neglects  them,  *and  exposes  the  goods  to  a  greater 
hazard,  the  innkeeper  is  exonerated,  (w) 

No  especial  delivery  or  direction  of  the  goods  to  the  inn- 
keeper is  necessary  to    charge    him  ;    for   it   is   enough   if 


ing  to  place  some  parcels  in  the  same 
room,  Kirton  permitted  her  to  use  the 
key,  and  he  had  not  the  exclusive  use 
of  it,  and  other  parcels  were  deposited 
in  the  same  room.  Kirton  boarded  and 
lodged  in  the  house  for  almost  a  fort- 
night, and  from  time  to  time  introduced 
his  customers  into  the  room.  A  short 
time  before  he  left  the  house  he  disco- 
vered that  a  package  was  missing, 
which  made  the  subject  of  the  present 
demand.  Le  Blanc,  J.,  in  summing  up 
to  the  jury,  said:  —  "If  a  guest  take 
upon  himself  the  exclusive  charge  of 
the  goods  which  he  brings  into  the 
house  of  an  innkeeper,  he  cannot  after- 
wards charge  the  innkeeper  with  the 
loss.  The  only  question  in  this  case 
is,  whether  Kirton  did  not  take  upon 
himself  the  exclusive  charge  of  his 
goods,  to  the  exclusion  of  every  other 
person?  A  landlord  is  not  bound  to 
furnish  a  shop  to  every  guest  who 
comes  into  his  house ;  and  if  a  guest 
takes  exclusive  possession  of  a  room, 
which  he  uses  as  a  warehouse  or  shop, 
he  discharges  the  landlord  from  his 
common-law  liability.  The  question, 
therefore,  for  your  consideration,  is, 
whether,  when  the  goods  were  lost,  they 
were  exclusively  in  Kirton's  possession  1 
It  is  admitted  that  during  part  of  the 
time  Kirton  kept  the  key ;  if  afterwards 
the  defendant  took  the  key  from  him, 
the  goods  then  ceased  to  be  under  his 
exclusive  control,  and  the  defendant 
became  liable  for  their  safe  custody. 
The  only  question  is  whether,  at  the 
time  of  the  loss,  the  goods  were  in  the 
exclusive  possession  of  Kirton  ?  "  The 
jury  found  a  verdict  for  the  defendant. 
See  also  Burgess  v.  Clements,  4  M.  & 

[648] 


S.  306.  The  same  rule  holds  where 
the  guest,  instead  of  reposing  himself 
upon  the  protection  of  the  innkeeper, 
intrusts  his  property  to  some  one  else 
in  the  house.  Sneider  v.  Geiss,  1 
Yeates,  34. 

(t)  Thus,  where  a  traveller  went  into 
an  inn,  and  desired  to  have  his  luggage 
taken  into  the  commercial  room,  to 
which  he  resorted,  from  whence  it  was 
stolen,  the  court  held  that  the  innkeeper 
was  responsible,  although  he  proved 
that,  according  to  the  usual  practice  of 
his  house,  the  luggage  would  have  been 
deposited  in  the  guest's  bedroom,  and 
not  in  the  commercial  room,  if  no  order 
had  been  given  respecting  it.  Rich- 
mond V.  Smith,  8  B.  &  Cr.  9. 

(m)  Anonymous,  Moore,  78,  pi.  207  ; 
Calye's  case,  8  Co.  Rep.  32.  In  the 
case  of  Burgess  v.  Clements,  4  M.  &  S. 
306, Lord  Ellenborougli says :  —  "I  agree 
that  if  an  innkeeper  gives  the  key  of 
the  chamber  to  his  guest,  this  will  not 
dispense  with  his  own  care,  or  discharge 
him  from  his  general  responsibility  as 
innkeeper.  But  if  there  be  evidence 
that  the  guest  accepted  the  key,  and 
took  on  himself  the  care  of  his  goods, 
surely  it  is  for  the  jury  to  determine 
whether  this  evidence  of  his  receiving  the 
key  proves  that  he  did  it  aniino  custodi- 
enai,  and  with  a  purpose  of  exempting 
the  innkeeper,  or  whether  he  took  it 
merely,  because  the  landlord  forced  it 
on  him,  or  for  the  sake  of  securing 
greater  privacy,  in  order  to  prevent 
persons  from  intrading  themselves  into 
his  room." 

(v)  Calye's  case,  8  Co.  Rep.  32. 

(iv)  Sanders  v.  Spencer,  Dyer,  266  b; 
Calye's  case,  8  Co.  Rep.  32. 


CH.   XII.]  BAILMENT.  -627 

they  are  fairly,  according  to  common  practice,  within  his 
custody,  (x) 

It  is  said  that  if  the  innkeeper  refuses  to  receive  the  party 
as  a  guest,  he  is  not  liable  for  any  loss  of  his  goods.  But  he 
cannot  so  refuse,  unless  his  house  is  full,  and  he  is  actually 
unable  to  receive  him.  (y)  And  if  on  false  pretences  he  re- 
fuses, he  is  liable  to  an  action,  (z)  And  it  is  said  that  he 
may  even  be  indicted  therefor,  (a) 

An  innkeeper  may  refuse  to  receive  a  disorderly  guest,  or 
require  him  to  leave  his  house,  {b)  He  is  not  bound  to 
examine  into  the  reasonableness  of  the  guest's  requirements, 
if  the  guest  be  possessed  of  his  reason,  and  is  not  a  minor,  (c) 
And  while  travellers  are  entitled  to  proper  accommodation, 
they  have  no  right  to  select  a  particular  apartment,  or  use  it 
for  purposes  other  than  those  for  which  it  is  designed.  ((/) 
But  an  innkeeper  has  no  right  to  prevent  the  driver  of  a  line 
that  is  a  rival  to  one  which  favors  the  innkeeper,  from  enter- 
ing his  house  for  lawful  and  reasonable  purposes,  (e) 

Nothing  need  be,  nor  usually  is,  paid  for  the  goods  sepa- 
rately. (/)  The  compensation  paid  by  the  owner  for  his 
entertainment  covers  the  care  of  the  property.  The  custody 
of  the  goods  is  accessory  to  the  principal  contract. 

It  is  sometimes  dijfficult  to  know  who  is  the  guest  of  an 
innkeeper,  (g-)     In  this  country  it  is  very  common  for  persons 

(x)  McDonald  v.  Edgcrton,  5  Barb,  unsupported  by  authority,  and  wholly 

560;   Bennet  v.  Mellor,    5    T.  R.  273.  inconsistent  with   the    principle    upon 

Nor  is  it  material  whether  the  property  which    the    liability   of   an    innkeeper 

intrusted  to  the   innkeeper  consists  of  rests." 

goods  or  of  money.     Kent  v.  Shuck-  {>/)  Hawthorn  v.  Hammond,  1   Car. 

ard,  2  B.  &  Ad.  803.     Nor  is  it  limited  &  Kir.  404 ;  Kirkman  v.   Shawcross,  6 

to   any  particular  amount.     Berkshire  T.  K.  14. 

Woollen  Co.  v.  Proctor,  5  Law  Rep.  (~)  White's  case,  Dyer,  158  b,  1  Rol. 

N.   S.  378;    s.  c.   7   Cush.  417.      See  Abr.  3,  (F,)  pi.  1. 

the  facts   of  this   case   stated   post,   p.  (a)  Rex  v.  Ivcns,  7  C.  &  P.  213. 

628,   n.    (i.)     Fletcher,  J.,  in  reference  (h)  Howell  i'.  Jackson,  6  C.  &  P.  723 

to  this  point,  says  :  —  "  Tiie  responsi-  Rex  v.  Ivens,  7  C.  &  P.  213. 

bility  of  innkeepers   for  the   safety  of  (c)  Proctor  v.  Nicholson,  7  C.  &  P. 

the  goods  and  chattels  and  money  of  67. 

their  guests,  is  founded   on   the   great  [d)  Fell  v.  Knight,  8  M.  &  W.  2G9. 

principle  of  public  utilit}',  and  is  not  (e)  Markliam  v.  Brown,  8  N.  Ilamp. 

restricted  to  any  particular  or  limited  523. 

amount The  principle  for  (/)  Lane  v.  Cotton,   12   Mod.   472, 

which  the  defendants  contend,  that  inn-  487. 

keepers  arc  liable  for  such  sums  only  as  (7)  Purchasing  liquor  at  an  inn  has 

are  necessary  and  designed  for  the  ordi-  been  held  suflicient  to  constitute  one  a 

nary  travelling  expenses  of  the  guest,  is  guest.    Bennet  v.  Mellor,  5  T.  R.  273. 

VOL.   I.  55  [649] 


628  THE   LAW   OF   CONTKACTS.  [BOOK  III. 

to  become  boarders  at  an  inn  ;  and  then  they  cease  to  be 
guests  in  such  a  sense  as  to  hold  the  innkeeper  to  his  pecu- 
liar liability,  and,  on  the  other  hand,  give  him  his  lien,  (h) 
We  take  the  distinction  between  the  guest  and  the  boarder 
to  be  this.  The  guest  comes  without  any  bargain  for  time, 
remains  without  one,  and  may  go  when  he  pleases,  paying 
only  for  the  actual  entertainment  which  he  receives ;  and  it 
is  not  enough  to  make  him  a  boarder,  and  not  a  guest,  that 
he  has  staid  a  long  time  in  the  inn,  in  this  way.  This  we 
hold  to  be  the  general  rule ;  but  there  may  be  some  difficulty 
in  the  application  of  it ;  for,  on  the  one  hand,  the  special 
contract  between  the  boarder  and  the  master  of  the  house 
may  be  express  or  implied,  and  a  length  of  residence,  upon 
certain  terms,  might  certainly  be  one  circumstance,  which, 
with  others,  might  lead  to  the  inference  of  such  a  contract. 
On  the  other  hand,  if  a  traveller  on  a  journey  stops  at  an  inn 
for  three  days,  and  makes  a  bargain  for  that  time,  it  would 
be  difficult  to  say  that  he  thereby  ceased  to  be  a  guest,  and 
that  the  innkeeper  was  exonerated  from  liability  as  such,  (i) 
This  question  must  always  be  one  of  mixed  law  and  fact. 


In  this  case  the  plaintiff's  servant  had  Mason  v.   Thompson,    9    Pick.    280  ; 

taken  some  goods  to  market  at  Man-  Towson  v.  Havre-de-Grace  Bank,  6  Har. 

Chester,  and  not  being  able  to  dispose  &  Johns.  47 ;   Berkshire  Woollen  Co. 

of  them,  went  with  them  to  the  defend-  v.  Proctor,  5  Law  Rep.  N.  S.  378  ;  s.  c. 

ant's  inn,  and  asked    the    defendant's  7   Cush.  417;  Washburn  v.  Jones,  14 

wife  if  he  could  leave  the  goods  there  Barb.  193. 

till  the  following  week,  and  she  said  she  (h)  Manning  v.   Wells,    9   Humph, 

could  not  tell,  for  they  were  very  full  of  746. 

parcels.  The  plaintiff's  servant  then  (i)  This  question  has  been  recently 
sat  down  in  the  inn,  had  some  liquor,  discussed  in  the  Supreme  Judicial 
and  put  the  goods  on  the  floor  imme-  Court  of  Massachusetts,  in  the  case  of 
diately  behind  him,  and  when  he  got  the  Berkshire  Woollen  Co.  v.  Proctor 
up,  after  sitting  there  a  little  while,  the  ct  al.  5  Law  Eep.  N.  S.  378 ;  s.  c. 
goods  were  missing.  There  was  a  ver-  7  Cush.  417.  In  that  case,  one  Kus- 
dict  for  the  plaintifi'  for  the  value  of  the  sell,  the  agent  and  servant  of  the 
goods ;  and,  on  a  motion  for  a  new  plaintiff,  a  corporation,  came  to  Bos- 
trial,  the  Court  of  King's  Bench  sus-  ton  with  a  large  number  of  witnesses, 
tained  the  verdict,  deciding  that  the  to  take  charge  of  a  lawsuit  in  be- 
plain  tiff 's  servant  was  to  be  deemed  the  half  of  the  corporation,  bringing  with 
guest  of  the  defendant.  See  also  Mc-  him  one  thousand  dollars  to  defray  the 
Donald  v.  Edgerton,  5  Barb.  560  ;  expenses  of  the  suit,  and  put  up  at  de- 
Washburn  v.  Jones,  14  Barb.  193.  Nor  fendants'  inn  as  a  guest,  with  several  of 
is  it  necessary  that  the  owner  of  the  the  witnesses,  for  whose  board  he  pro- 
goods  be  himself  a  guest,  in  order  to  mised  to  be  responsible  to  the  defend- 
entitlc  him  to  an  action  against  an  inn-  ants,  but  at  an  agreed  price  for  board 
keeper.  If  his  servant  or  friend  to  by  the  week,  —  the  price  to  be  greater  if 
whom  he  has  intrusted  the  possession  they  did  not  stay  a  week,  —  and  under 
of  the  goods  is  a  guest,  it  is  sufficient,  said  agreement  staid  at  defendants'  inn 

[650] 


CH.   XII.] 


BAILMENT. 


629 


Another  question  has  arisen  ;  whether  he  is  a  guest  who 
only  sends  or  carries  his  property  to  an  inn,  and  places  it  in 
the  custody  of  the  innkeeper,  but  does  not  go  there  himself, 
to  eat  or  to  lodge.  Upon  this  question  the  authorities  are 
directly  antagonistic;  {j)  but  we  think  that  such  person  is 
not  a  guest,  and  that  the  innkeeper  is  then  only  a  depositary 
for  compensation,  and  liable  as  such.  We  think  the  test  is 
this.  Is  he  bound  to  receive  and  to  keep  goods  so  sent  or 
brought  to  him?  He  is  certainly  bound  to  receive  them  — 
if  not  unreasonable  in  quantity,  or  dangerous  in  quality — if 
the  guest  comes  and  stays  with  them  ;  and  then  insures  them 
as  above  stated.  But  we  think  he  may  refuse  to  take  charge 
of  them  if  the  owner  does  not  accompany  them ;  for  the  cus- 
tody of  the  goods,  as  we  have  already  said,  is  merely  acces- 
sory to  the  principal  contract.     He  may  refuse  them,  and 

less  than  the  usual  price  would  not 
affect  his  character  as  a  guest.  The 
character  of  a  guest  does  not  depend 
upon  the  payment  of  any  particular 
price,  but  upon  other  focts.  If  an  in- 
habitant of  a  place  makes  a  special  con- 
tract with  an  innkeeper  there,  for  board 
at  his  inn,  he  is  a  boarder,  and  not  a 
traveller  or  a  guest,  in  the  sense  of  the 
law.  But  Russell  was  a  traveller,  and 
put  up  at  defendants'  inn  as  a  guest, 
was  received  by  the  defendants  as  a 
guest,  and  was,  in  the  sense  of  the  law, 
and  in  every  sense,  a  guest." 

(j)  This  question  was  decided  in  the 
affirmative  by  a  majority  of  the  judges, 
against  the  opinion  of  Lord  Holt,  in 
Yorkc  V.  Grenaugli,  2  Ld.  Eaym.  866  ; 
s.  c.  nom.  York  v.  Grindstone,  1  Salk. 
388.  And  on  tiie  authority  of  this  case, 
it  was  decided  the  same  way  in  Mason 
V.  Thompson,  9  Pick.  280.  See  also 
the  case  of  Peet  v.  McGraw,  25  Wend. 
653,  whicli  contains  a  dictum  by  Nelson, 
C.  J.,  to  the  same  effect ;  and  Berkshire 
Woollen  Co.  v.  Proctor,  5  Law  Rep.  N. 
S.  378,  s.  c.  7  Cusli.  417,  in  which  the 
point  is  noticed,  but  no  opinion  given, 
On  the  other  hand,  in  Grinnell  v.  Cook. 
3  Hill,  485,  the  Supreme  Court  of  New 
York,  after  much  consideration,  decided 
the  same  question  the  other  way,  con- 
formably to  the  opinion  of  Lord  Holt. 
See  also  Thickstun  v.  Howard,  8  Blackf. 
535,  to  the  same  eilcct.  Sec  also  Smith 
V.  Bcarlovc, post,  p.  032,  n.  (u.) 


for  eighteen  days.  It  was  held  that  the 
relation  of  landlord  and  guest  was  esta- 
blished instantly  upon  his  arrival  at  the 
inn,  and  his  reception  as  a  guest,  and 
was  not  affected  by  his  staying  for  a 
longer  or  shorter  time,  if  he  retained 
his  character  as  a  traveller,  and  the  fact 
that  there  was  an  agreed  price  for  board 
would  not  take  away  his  character  as  a 
traveller  and  guest.  And  Fletcher,  J., 
said:  —  "It  is  maintained  for  the  de- 
fendants that  Russell  was  not  a  guest, 
in  the  sense  of  the  law,  but  a  boarder. 
But  Russell  surely  came  to  the  defend- 
ant's inn  as  a  wayfaring  man  and  a  tra- 
veller, and  the  defendants  received  him, 
as  such  wayfaring  man  and  traveller, 
as  a  guest  at  their  inn.  Russell  being 
thus  received  l)y  the  defendants  as  their 
guest  at  their  inn,  the  relation,  with  all 
the  rights  and  liabilities  of  the  relation 
of  landlord  and  guest,  was  instantly 
established  between  them.  The  length 
of  time  that  a  man  is  at  an  inn  makes 
no  difference,  wliether  he  stays  a  week 
or  a  month,  or  longer,  so  that  always 
thougli  not  strictly  traiisiens,  he  retains 
his  character  as  a  traveller.  Story'  on 
Bailm.  §  477.  The  simple  fact  that 
Russell  made  an  agreement,  as  to  the 
price  to  be  paid  by  him  by  the  week, 
would  not,  upon  any  principle  of  law 
or  reason,  take  away  his  character  as  a 
traveller  and  a  guest.  A  guest  for  a 
single  night  might  make  a  special  con- 
tract as  to  tlie  price  to  be  paid  for  his 
lodging,  and  whether  it  were  more  or 


[651J 


630 


THE  LAW   OF   CONTRACTS. 


BOOK  III. 


therefore  if  he  receives  them  it  is  not  as  an  innkeeper,  or  at 
least  not  so  as  to  subject  him  to  the  peculiar  liability  of  an 
innkeeper.  It  is  quite  certain  that  he  is  not  answerable  for 
goods  left  by  the  owner,  for  which  he  is  to  receive  no  com- 
pensation, (k)  A  guest  undoubtedly  may  leave  an  inn  for 
a  time,  and  still  leave  his  property  under  the  safeguard  of 
the  landlord's  liability.  And  it  is  impossible  to  say  precisely 
how  long  he  may  so  leave  it,  without  ceasing  to  be  a  guest. 
On  the  other  hand,  it  must  be  certain  that  one  cannot  lodge 
for  a  day  or  two  at  an  inn,  and  then  depart,  leaving  valuable 
property  for  an  indefinite  period,  and  the  landlord  be  sub- 
jected, as  long  as  the  owner  pleases,  to  the  peculiar  liability 
of  an  innkeeper.  In  such  case  he  would  be  like  a  ware- 
houseman, or  other  depositary,  liable  only  for  his  negli- 
gence. (/) 


{k)  Yorke  v.  Grenaugh,  2  Ld.  Eaym. 
866  ;  s.  c,  nom.  York  v.  Grindstone,  1 
Salk.  388. 

(/)  In   the   case   of  Gelley  v.  Clerk, 
Cro.  Jac.   188,    it    appeared    that   the 
plaintiff',  being  a  guest  at  the  house  of 
the  defendant,  who  was  an  innkeeper  at 
Uxbridge,  went  from  thence   to   Lon- 
don, and  left  his  goods  with  the  defend- 
ant, saying  that  he  would  return  within 
two   or   three   days.     He   returned   ac- 
cordingly within  the  three  days,  and  in 
the  mean  time  his  goods  had  been  stolen. 
Upon  these  facts,  Foster,  Sergeant,  for 
the   plaintiff,  contended   that   the   inn- 
keeper should  be  charged.     "For  when 
the  plaintiff  was  a  guest,  and  left  his 
goods  for  so  short  a  time,  and  promised 
to  return  so  soon,  and  returned  accord- 
ingly, he  is  all  that  time  accounted  as  a 
guest,  and  shall  be  said  to  be  a  guest,  to 
charge  the  defendant  as  an  innkeeper, 
according  to  the  custom  of  the  realm. 
And  it  was  adjudged  in  the  case  of  Sir 
Edwyn  Sands,  where  he  came  to  an  inn 
and  lodged,  and  went  out  thereof  in  the 
morning  and  left  his  cloak-bag  there, 
intending  to   return   at  night,  and   at 
night  returned  accordingly,  and  in  the 
interim  his  cloak-bag  was  stolen,  that 
he  might  have  his  remedy  by  an  action 
grounded  upon  the  common  custom  :  so 
here,   &c."     Sed  iwn   allocatur;  for  per 
Williams,  J. :  —  "  If  one  come  to  an  inn 
and  leave  his  goods  and  horses,  and  go 
into  the  town,  and  after  returns,  and  in 
the  interim  his   goods  are  stolen,  no 

[652] 


doubt  but  he  is  a  guest,  and  shall  have 
remedy,  and  so  was  Sir  Edwyn  Sands's 
case  ;  for  his  absence  in  part  of  the  day 
is  not  material,  but  he  is  always  reputed 
as  a  guest.  So  where  one  leaves  his 
horse  at  an  inn,  to  stand  there  by  agree- 
ment at  livery,  although  neither  himself 
nor  any  of  his  servants  lodge  there,  he 
is  reputed  a  guest  for  that  purpose,  and 
the  innkeeper  hath  a  valuable  consider- 
ation ;  and  if  that  horse  be  stolen,  he  is 
chargeable  with  an  action  upon  the 
custom  of  the  realm.  But,  as  in  the 
case  at  the  bar,  where  he  leaves  goods 
to  keep,  whereof  the  defendant  is  not  to 
have  any  benefit,  and  goes  from  thence 
for  two  or  three  days,  although  he  saith 
he  will  return,  yet  he  is  at  his  liberty, 
and  therefore  he  is  not  a  guest  during 
that  time."  The  distinctions  taken  in 
this  case  have  been  recognized  substan- 
tially in  several  subsequent  cases.  See 
Grinnell  v.  Cook,  3  Hill,  485 ;  McDo- 
nald V.  Edgerton,  5  Barb,  560  ;  Towson 
V.  Havre-de-Grace  Bank,  6  H.  &  Johns. 
47.  See,  however,  aiUe,  p.  629,  n.  (j), 
that  what  Williams,  J.,  says  in  regard 
to  leaving  a  horse  at  an  inn  must  be 
confined  to  those  cases  where  the  owner 
is  himself  a  guest  at  the  time  of  so  leav- 
ing the  horse.  In  Wintermute  v. 
Clarke,  5  Sandf.  242,  the  plaintiff's  son 
went  to  the  tavern  of  the  defendant  with 
his  baggage,  which  he  left  there.  The 
next  morning  he  paid  his  bill  for  his 
lodgings,  leaving,  as  was  contended,  his 
trunk  at  the  inn.    Upon  the  testimony 


CH.  XII.] 


BAILMENT. 


631 


Innkeepers  are  liable  only  for  goods  brought  within  the 
inn,  or  otherwise  placed  distinctly  within  their  custody,  in 
some  customary  and  reasonable  way.  (w)  Where  a  horse 
or  carriage  is  put  in  an  open  shed,  or  the  horse  put  for  the 
night  into  a  pasture  by  the  innkeeper,  without  the  consent 
of  the  owner,  he  is  still  liable ;  (n)  but  it  is  otherwise  if  it 
is  done  with  the  owner's  consent,  or  by  his  directions  ;  (o) 
and  where  this  is  usually  done,  and  the  owner  knows  the 
custom,  and  gives  no  particular  direction,  it  might  be  pre- 
sumed that  he  consented,  and  took  the  risk  upon  himself,  (p) 


the  judge  charged  the  jury  that  if  they 
believed  the  trunk  had  been  talvcn  away 
by  any  other  person  than  the  plaintiff's 
son,  even  after  the  plaintiff  had  paid  his 
bill,  the  defendant  was  liable.  The 
verdict  of  the  jury  for  the  plainfiff  was 
set  aside,  and  a  new  trial  granted,  on 
the  ground  that  after  a  guest  pays  his 
bill  and  leaves  the  house,  it  is  at  his  own 
peril  that  he  leaves  his  property  behind 
him,  and  that  the  innkeeper  has  a  right 
to  believe  that  he  takes  it  with  him,  and 
is  therefore  no  longer  responsible  for  it, 
unless  it  is  specially  committed  to  his 
charge,  and  then  only  as  ordinary  bailee. 

(m)  Simon  v.  Miller,  7  Louis.  Ann. 
360;  Albin  v.  Presby,  8  N.  H.  408, 
cited  post,  n.  (p.)  But  in  Clute  v.  Wig- 
gins, 14  Johns.  175,  where  a  sleigh 
loaded  with  bags  of  wheat  and  barley 
was  put  by  the  guest  into  an  outhouse 
appurtenant  to  the  inn,  where  loads  of 
that  description  were  usually  received, 
and  tbe  grain  was  stolen  during  the 
night,  the  innkeeper  was  held  responsi- 
ble for  the  loss,  the  court  holding  that 
the  grain  was  infra  hospitium. 

(n)  Calyc's  case,  8  Co.  Rep.  32 ;  Pi- 
per V.  Manny,  21  Wend.  282 ;  Mason 
V.  Thompson,  9  Pick.  280.  And  where 
an  innkeeper  on  the  day  of  a  fair,  upon 
being  asked  by  a  traveller,  then  driving 
a  gig  of  which  he  was  owner,  "  whether 
he  had  room  for  the  horse  ?  "  put  the 
horse  into  the  stable  of  the  inn,  received 
the  traveller  with  some  goods  into  the 
inn,  and  placed  tlio  gig  in  the  open 
street  without  the  inn  yard,  where  he 
was  accustomed  to  place  the  carriages 
of  his  guests  on  fair  days  ;  and  the  gig 
was  stolen  from  thence ;  the  court  held 
that  the  innkeeper  was  answerable. 
Jones  V.  Tyler,  1  A.  &  E.  522  ;  3  Nev. 
&.  Man.  576. 

(o)  Calyc's  case,  8  Co.  Rep.  32.    In 

55* 


Hawley  v.  Smith,  25  "Wend.  642,  it  ap- 
peared that  the  defendant  was  an  inn- 
keeper, and  that  the  plaintiff  stopped  at 
his  house  with  a  drove  of  700  sheep, 
which,  with  his  knowledge,  were  turned 
out  to  pasture.  On  the  following  day 
several  of  the  sheep  died,  and  others  sick- 
ened, inconsequence  of  having  eaten /a«- 
rel,  which  they  found  in  the  pasture.  A 
verdict  having  been  found  for  the  plain- 
tiff", upon  these  facts,  under  the  direction 
of  the  judge,  the  Supreme  Court  grant- 
ed a  new  trial  for  a  misdirection.  And 
Nelson,  C.  J.,  said  :  —  "  I  am  of  opinion 
this  case  falls  within  an  exception  laid 
down  in  Calye's  case,  8  Co.  Rep.  32, 
to  the  general  rule  in  respect  to  the 
liability  of  an  innkeeper,  which  has 
been  followed  ever  since.  It  was  there 
resolved,  that  if  the  guest  deliver  his 
horse  to  the  hostler,  and  request  that 
he  be  put  to  pasture,  which  is  accord- 
ingly done,  and  the  horse  is  stolen,  the 
innholder  is  not  responsible,  not  being, 
in  the  common-law  sense  of  the  term, 
infra  hospitium.  He  is  not  to  be  re- 
garded as  an  insurer  for  goods  witliout 
the  inn,  that  is  for  goods  not  within  the 
curtilage.  The  sheep  were  put  to  pas- 
ture under  the  direction  of  the  guest, 
which  fact  should  have  been  regarded 
by  the  learned  judge  as  bringing  the 
case  within  the  above  exception.  It 
would  then  have  turned  upon  the  ques- 
tion of  negligence,  which  should  have 
been  put  to  the  jury  upon  the  facts  dis- 
closed." 

(p)  Thus  in  Albin  v.  Presby,  8  N.H. 
408,  where  a  traveller,  after  arriving  at 
an  inn,  placed  his  loaded  wagon  under 
an  open  shed,  near  tlie  highway,  and 
made  no  request  to  the  innkeeper  to 
take  the  custody  of  it,  and  goods  were 
stolen  from  it  in  tlie  niglit ;  it  was  /leld 
that  the  innkeeper  was  not  liable  for 

[653] 


632 


THE  LAW   OF   CONTRACTS. 


[book  III 


An  innkeeper  has  a  lien  on  the  property  of  the  guest  (not 
on  his  person)  (q)  for  the  price  of  his  entertainment,  (r)  He 
has  this  lien  on  a  horse  even  if  it  be  stolen,  and  the  thief 
brings  it  to  him.  {s)  But  it  is  not  quite  certain,  on  the 
authorities,  how  far  this  lien  of  the  innkeeper  extends,  (t) 
Upon  the  whole,  it  seems  that  he  has  it  on  all  the  goods  of 
the  guest  which  he  has  received,  excepting  only  those  actually 
worn  by  him  on  his  person,  and  that  this  lien  covers  the 
whole  amount  due  for  the  entertainment  of  the  guest,  or  his 
servant  or  horse,  (u) 


the  loss,  notwithstanding  it  was  usual 
to  place  loaded  teams  in  that  place. 
■  And  Parker,  J.,  said :  —  "  The  present 
case  finds,  to  be  sure,  that  the  wagon 
was  put  in  the  place  where  loaded  wa- 
gons of  guests  were  usually  placed, 
when  they  were  put  under  shelter ;  but 
they  were  doubtless  usually  so  placed, 
with  the  knowledge  and  assent  of  the 
guests.  It  is  well  known  that  loaded 
wagons  are  often  left  within  the  limits 
of  the  highway  near  the  inn,  and  are 
usually  not  placed  in  any  building  or 
inclosed  yard,  unless  there  is  a  special 
request  for  it.  Few  inns  in  the  country 
have  suitable  accommodations  for  se- 
curing property  of  this  character  in  such 
a  manner.  In  the  present  case,  there 
is  not  onl_y  knowledge  and  assent,  but 
the  plaintiff  himself  places  the  wagon 
in  that  situation.  He  of  course  could 
not  have  expected  that  it  would  be  re- 
moved to  another  place  —  he  made  no 
request  to  that  eft'ect  —  and  he  must 
have  known  that  the  goods  could  not 
be  secui'ed  from  thieves  in  that  place, 
except  by  a  watch.  Assuredly  he  could 
not  have  expected  they  would  be  guard- 
ed by  the  defendant,  in  that  manner ; 
and  under  such  circumstances,  ought 
not  to  have  expected  that  the  defend- 
ant was  to  be  responsible  for  a  loss. 
And  as  the  inns  in  this  country  are  not 
generally  furnished  with  accommoda- 
tions for  the  protection  of  the  carriages 
of  all  guests  who  may  lodge  at  the  inn, 
and  the  custom  of  permitting  them  to 
remain  in  open  yards,  where  they  can- 
not be  protected  but  by  a  guard,  is  so 
universal  and  well  known,  we  think  it 
a  sound  position  that  the  assent,  of  the 
traveller  is  to  be  presumed  in  such 
case,  unless  he  makes  a  special  request 
that  his  carriage  should  be  put  in  a 
safe  place ;  and  that   such  open  yard 

[654] 


is  not  to  be  deemed  a  part  of  the  inn, 
so  as  to  charge  the  innkeeper  for  the 
loss,  unless  he  neglects,  upon  request, 
to  put  the  goods  in  a  place  of  safety, 
which  he  is  bound  to  do,  on  such  re- 
quest, if  he  have  any  accommodations 
which  enable  him  to  comply  with  it." 
See  Clute  v.  Wiggins,  14  Johns.  175, 
cited  ante,  p.  631,  n.  (m.) 

{q)  Sunbolf  V.  Alford,  3  M.  &  W.  248. 

(r)  Robinson  v.  Walter,  Poph.  127, 
3  Bulst.  269 ;  Johnson  v.  Hill,  3  Stark. 
172  ;  Grinnell  v.  Cook,  3  Hill,  485. 

(s)  Jones  V.  Thurloe,  8  Mod.  172. 
And  where  the  guest  brings  to  the  inn 
a  carriage  not  his  own,  for  the  standing 
room  of  which  the  innkeeper  acquires  a 
claim,  for  this  he  has  a  lien  and  may 
defend  against  an  action  of  trover 
brought  by  the  owner  of  the  carriage. 
TurrlU  v.  Crawley,  13  Q.  B.  197. 

(<)  In  Bac.  Abr.  tit.  Inns  and  Inn- 
keepers, (D.)  it  is  said:  —  "If  a  horse 
be  committed  to  an  innkeeper,  it  may 
be  detained  for  the  meat  of  the  horse, 
but  not  for  the  meat  of  the  guest ;  for 
the  chattels  are  only  in  the  custody  of 
the  law  for  the  debt  that  arises  from  the 
thing  itself,  and  not  for  any  other  debt 
due  from  the  same  party;  for  the  law 
is  open  to  all  such  debts,  and  doth  not 
admit  private  persons  to  make  repri- 
sals." See  also  Rosse  v.  Bramsteed,  2 
Rol.  Rep.  438. 

(?0  See  Thompson  r.Lacy,3  B.&Ald. 
283  :  Proctor  v.  Nicholson,  7  C.  &  P.  67. 
But  whei-e  an  innkeeper  receives  horses 
and  a  carriage  to  stand  at  livery,  the 
circumstance  of  the  owner,  at  a  subse- 
quent period,  taking  occasional  refresh- 
ment at  the  inn,  or  sending  a  friend 
to  be  lodged  there  at  his  charge,  will 
not  entitle  the  innkeeper  to  a  lien  in 
respect  of  any  part  of  his  demand.  For 
the  right  of  lien  of  an  innkeeper,  say 


CH.   XII.]  BAILMENT.  *633 

LocATio  opERis  MERciUM  vehendarum.  The  ownei*  of 
goods  may  cause  them  to  be  carried  by  a  private  carrier  gra- 
tuitously, or  by  a  private  carrier  for  hire,  or  by  a  common 
carrier.  Any  one  who  carries  goods  for  another  is  a  private 
*  carrier,  unless  he  comes  within  the  definition  of  the  common 
carrier  which  we  shall  give  presently.  If  the  private  carrier 
carries  them  gratuitously,  he  is  a  mandatary,  and  is  bound 
only  to  slight  diligence,  and  liable  only  for  gross  negligence; 
because  this  bailment  is  wholly  for  the  benefit  of  the  bailor. 

A  carrier,  like  any  mandatary,  has  a  special  property  so 
far  as  to  maintain  an  action  for  a  tort  to  the  thing  while  in 
his  possession  ;  but  not,  it  seems,  if  it  went  out  of  his  pos- 
session by  his  own  wrongful  disregard  of  the  directions  of 
the  bailor,  (y)  And  if  he  incur  expenses  in  relation  to  it,  he 
would  have  a  lien  on  the  article  for  them. 

The  private  carrier  for  hire  is  bound  to  ordinary  diligence, 
and  liable  for  ordinary  negligence,  because  this  bailment  is 
for  the  benefit  of  both  bailor  and  bailee.  He  is  of  course  not 
liable  for  a  loss  caused  by  robbery  or  theft,  which  could  not 
be  avoided  by  ordinary  care,  or  for  one  from  overpowering 
force.  But  he  is  liable  for  the  negligence  of  his  servants  or 
agents,  (lo)  It  is  not  necessary  that  the  owner  should  pro- 
mise to  pay  the  carrier  a  certain  price,  in  order  to  hold  him 
to  this  liability ;  for  it  is  enough  if  the  carrier  is  entitled  to  a 
reasonable  compensation.  By  the  civil  law,  robbery  by  force 
was  a  sufficient  defence  for  the  bailee,  but  if  the  goods  were 
lost  by  secret  purloining,  he  was  bound  to  show  afHrmatively 
the  absence  of  negligence  on  his  part.  It  can  hardly  be  said 
that  this  distinction  is  adopted  by  the  common  law  ;  although 
it  has  been  said  that  the  occurrence  of  such  loss  was  primd 
facie  evidence  of  negligence ;  but  it  may  well  be  doubted 
whether  the  common  law  raises  such  a  presumption,  (x) 
Certainly  in  most  cases,  if  not  in  all,  the  question  of  ordinary 
negligence  is  one  of  fact,  to  be  determined  by  the  jury  on 
the  whole  evidence,  and  not  one  of  law.  [y)     And  if  the  loss 

the  court,  depends  upon  tlie  fact  that         (w)  Miles  v.  Cattle,  6  Bing.  743. 
the  goods  came  into  his  possession  in         (iv)  Brind  v.  Dale,  8  C.  &  P.  207. 
his  character  of  innlceeper,  as  belonging         (x)  See  Story  on  Bailni.  §  3.'33-339. 
to  a  guest.     Smith  v.  Dearlove,  6  C.  B.        (y)  Doorman  v.  Jenkins,  2  Ad.  &  El. 
132.  256. 

[655] 


634*  THE  LAW   OF   CONTRACTS.  [BOOK  III. 

may  as  well  be  attributed  to  the  negligence  of  the  owner  as 
of  the  carrier,  the  carrier  is  not  liable.  We  take  the  distinc- 
tion between  the  common  carrier  and  the  private  carrier  for 
hire  to  be  this.  If  goods  given  to  either  are  neither  delivered 
*  nor  accounted  for,  the  carrier,  whether  common  or  private, 
is  liable.  But  if  it  be  shown  that  the  goods  were  lost,  then 
the  common  carrier  is  still  liable,  unless  he  brings  the  case 
within  the  exceptions  of  the  act  of  God,  or  of  the  public 
enemy  ;  but  the  private  carrier  is  not  liable,  unless  the  owner 
shows  that  the  loss  arose  from  the  carrier's  negligence.  (~) 
It  is  sometimes  said  that  the  liability  of  the  common  carrier 
is  independent  of  contract  and  imposed  by  custom  and  pub- 
lic policy.  We  should  prefer  saying  that  it  must  arise  from 
a  contract  and  be  founded  upon  it,  but  is  then  qualified  and 
regulated  by  the  customary  law  in  a  manner  different  from 
the  liability  assumed  by  a  private  carrier. 

A  private  carrier  for  hire  may  undoubtedly  enlarge  his  lia- 
bility by  special  contract,  even  to  the  extent  of  warranty. 
Or  he  may  lessen  his  liability  by  agreement.  A  special  pro- 
mise to  carry  "safely  and  securely,"  leaves  him  still  liable 
only  for  negligence,  (a) 

The  private  carrier  for  hire  would  seem,  on  general  princi- 
ples, to  have  a  lien  on  the  goods  for  his  hire  ;  but  this  does 
not  as  yet  appear  to  be  distinctly  adjudicated. 

Common  Carriers.  The  common  carrier  may  be  a  car- 
rier of  goods,  or  of  passengers,  or  of  both.  We  shall  first 
consider  the  common  carrier  of  goods,  and  afterwards  the 
common  carrier  of  passengers. 

The  law  in  relation  to  the  common  carrier  is  very  peculiar 
in  many  respects.  He  is  held  in  the  first  place  to  very  strin- 
gent responsibilities.  He  is  not  only  responsible  for  any  loss 
of  or  injury  to  the  goods  he  carries,  which  is  caused  by  his 
negligence,  but  the  law  raises  an  absolute  and  conclusive 
presumption  of  negligence  whenever  the  loss  occurs  from  any 
other  cause  than  "  the  act  of  God,"  or  the  public  enemy,  (b) 


{z)  See  anfe,  p.  606,  D.  {u.)  v.  Wood,  3   Esp.  127,   4  Doug.    290; 

(a)  Ross  V.  Hill,  2  C.  B.  877.  Forward  v.  Pittard,  1  T.  R.  27  ;  Mer- 

(b)  Coggs  V.  Bernard,  2  Ld.  Raym.  shon  v.  Hobensack,  2  New  Jersey,  372: 
909;  Proprietors  of  Trent  Navigation  Chevallier  v.  Straham,  2  Texas,  115; 

[656] 


CH.   XII.]  BAILMENT.  *635 

He  is  therefore  held  as  an  insurer  of  the  goods,  excepting 
only  these  two  causes  of  loss.  And  this  rule  of  law  is  at 
least  as  ancient  as  the  reign  of  Elizabeth,  (c)  It  is  obvi- 
ously founded  on  public  policy.  The  goods  are  entirely 
within  the  power  of  the  carrier ;  and  it  would  be  so  easy  for 
him  to  conceal  his  fraud  or  misconduct,  and  so  difficult  for 
the  owner  to  prove  it,  that  the  law  does  not  permit  the  in- 
quiry to  be  made;  but  supplies  the  want  of  proof  by  a  con- 
clusive presumption.  The  "  act  of  God "  is  considered  by 
*  some  as  equivalent  to  "  inevitable  accident,"  (d)  but  we  do 
not  so  construe  these  phrases.  There  seems  to  be  a  real 
difference  between  them.  The  carrier  is  liable  for  loss  by 
robbery,  although  the  force  was  overwhelming,  and  wholly 
without  notice.  If  it  be  said  that  he  is  liable  for  this  loss, 
because  it  is  not  "  inevitable,"  as  a  sufficient  guard  or  other 
precautions  might  have  prevented  it,  then  we  say  that  neither 
can  injury  from  an  inundation,  a  storm,  or  sudden  illness, 
(all  of  which  excuse  him,)  be  regarded  as  "inevitable,"  be- 
cause it  is  seldom  that  losses  from  these  causes  could  not 
have  been  prevented  by  previous  forethought  and  precaution. 
We  take  the  true  definition  of  the  "  act  of  God "  to  be,  a 
cause  which  operates  without  any  aid  or  interference  from 
man.  (e)  For  if  the  cause  of  loss  was  wholly  human,  or  be- 
came destructive  by  human  agency  and  cooperation,  then 
the  loss  is  to  be  ascribed  to  man  and  not  to  God,  and  to  the 
carrier's  negligenc?,  because  it  would  be  dangerous  to  the 
community  to  permit  him  to  make  a  defence  which  might  so 
fre'Tjuently  be  false  and  fraudulent.  (/)     Nor  need  this  "act" 


Friend  v.  Woods,  6  Grat.  189.     And  by  wind  and  storms,  which  arise  from  na- 

reason  of  this  liability  they  have  an  in-  tural  causes,  and  is  distinct  from  inevi- 

surable  interest  in  the  goods.      Chase  table  accident.''     Proprietors  of  Trent 

V.  "\Yashington  M.   Ins.  Co.  12   Barb.  Navigation  v.  Wood,  4  Doug.  287,  290. 

59.5;  Steele  I'.  Insurance  Co.  17  Penn.  See  also -the  remarks  of  Cowen,  J.,  in 

290.              ■  Mc Arthur  v.  Sears,  21  Wend.  190,  198. 

(c)  Woodleife  v.  Curties,  1  Ilol.  Abr.  (/)  The  case  of  Forward  v.  Pittard, 

2,    124;  2   Co.  Litt.  89  a ;  s.  c,  nom.  1  T.  R.  27,  is  a  very  leading  authority 

Woodlife's  case,  Moore,  462.  as  to  what  constitutes  an  act  of  God. 

((/)  See   Fish   v.    Chapman,   2    Geo.  In  that  case  the  plaintifFs  goods,  while 

349  ;  Neal  v.   Saunderson,   2  S.  &  M.  in  the  possession  of  the  defendant  as  a 

572 ;  Walpole  v.   Bridges,    5    Blackf.  common-carrier,    were     consumed    by 

222.  fire.    It  was   found   that   the  accident 

(e)  "  The   act  of  God,"  says   Lord  happened  without  any  actual  negligence 

Mansfield,    "  is    natural    necessity,    as  in  the  defendant,  but  that  the  tire  was 

[657] 


636  THE  LAW  OF  CONTRACTS.         [BOOK  III. 

be   positive ;    although  only   negative,   it  excuses  the   ear- 


not  occasioned  by  lightning.  Under 
these  circumstances,  the  Court  of  King's 
Bench  held  the  defendant  liable ;  and 
Lord  Mansfield  said:  —  "A  carrier  is 
in  the  nature  of  an  insurer.  It  is  laid 
down  that  he  is  liable  for  every  acci- 
dent, except  by  the  act  of  God  or  the 
king's  enemies.  Now,  what  is  the  act 
of  God  1  I  consider  it  to  mean  some- 
thing in  opposition  to  the  act  of  man  : 
for  every  thing  is  the  act  of  God  that 
happens  by  his  permission  ;  every  thing 
by  his  knowledge.  But  to  prevent  liti- 
gation, collusion,  and  the  necessity  of 
going  into  circumstances  impossible  to 
be  unravelled,  the  law  presumes  against 
the  carrier,  unless  he  shows  it  was  done 
by  the  king's  enemies,  or  by  such  act 
as  could  not  happen  by  the  interven- 
tion of  man,  as  storms,  lightning,  and 
tempests.  If  an  armed  force  come 
to  rob  the  carrier  of  tlie  goods,  he  is 
liable ;  and  a  reason  is  given  in  the 
books,  which  is  a  bad  one,  viz.,  that  he 
ought  to  have  a  sufficient  force  to  repel 
it ;  but  that  would  be  impossible  in 
some  cases,  as,  for  instance,  in  the  riots 
in  the  year  1780.  The  true  reason  is 
for  fear  it  maj^  give  room  for  collusion, 
that  the  master  may  contrive  to  be  rob- 
bed on  purpose,  and  share  the  spoil.  In 
this  case,  it  does  not  appear  but  that 
the  fire  arose  from  the  act  of  some  man 
or  other.  It  certainly  did  arise  from 
some  act  of  man ;  for  it  is  expressly 
stated  not  to  have  happened  by  light- 
ning. The  carrier  therefore  in  this  case 
is  liable,  inasmuch  as  he  is  liable  for 
inevitable  accident."  See  also  McAr- 
thur  V.  Sears,  21  Wend.  190;  Ewart  v. 
Street,  2  Bailey,  157  ;  Fishw.  Chapman, 
2  Geo.  349 ;  Backhouse  v.  Sneed,  1 
Murphey,  173.  Since  the  loss,  to  come 
within  the  exception  of  the  "  act  of 
God,"  must  happen  without  human 
agency,  it  is  of  course  no  excuse  for  the 
carrier  that  the  loss  was  occasioned  by 
the  act  of  a  third  person.  Thus  the 
owners  of  a  steamboat,  being  a  com- 
mon-carrier, are  liable  for  a  shipment 
on  board  of  her,  lost  by  means  of  a  col- 
lision with  another  vessel  at  sea,  and 
without  fault  imputable  to  either,  there 
being  no  express  stipulation  of  any 
kind,  between  the  owner  of  the  goods 
and  the  owners  of  the  boat,  that  they 
should  be  exempted  from  the  perils  of 
the  sea.    Plaisted  v.  B.  &  K.  Steam  Na- 

[658] 


vigation  Co.  27  Maine,  132.  See  also 
Mershon  v.  Ilobensack,  2  New  Jcr.  372. 
For  the  same  reason,  the  act  of  God, 
which  will  excuse  a  common-carrier  for 
the  loss  of  goods,  must  be  the  immedi- 
ate and  not  the  remote  cause  of  the 
loss.  This  is  well  illustrated  by  the 
case  of  Smith  v.  Shepherd,  Abbott  on 
Shipping,  383,  (5th  Am.  ed.)  That 
was  an  action  brought  against  the  mas- 
ter of  a  vessel  navigating  the  river 
Ouse  and  Humbev  from  Selby  to  Hull, 
by  a  person  whose  goods  had  been  wet 
and  spoiled.  At  the  trial,  it  appeared 
in  evidence  that  at  the  entrance  of  the 
harbor  at  Hull  there  was  a  bank  on 
which  vessels  used  to  lie  in  safety,  but 
of  which  a  part  had  been  swept  away 
by  a  great  flood  some  short  time  before 
the  misfortune  in  question,  so  that  it 
had  become  perfectly  steep,  instead  of 
shelving  towards  the  river  ;  that  a  few 
days  after  this  flood  a  vessel  sunk  by 
getting  on  this  bank,  and  her  mast, 
which  was  carried  away,  was  suffered 
to  float  in  the  river,  tied  to  some  part 
of  the  vessel;  and  the  defendant,  upon 
sailing  into  the  harbor,  struck  against 
the  mast,  which,  not  giving  way,  forced 
the  defendant's  vessel  towards  the  bank, 
where  she  struck,  and  would  have  re- 
mained safe  had  the  bank  remained  in 
its  former  situation,  but  on  the  tide 
ebbing,  her  stern  sunk  into  the  water, 
and  the  goods  were  spoiled ;  upon 
which  the  defendant  tendered  evidence 
to  show  that  there  had  been  no  actual 
negligence.  Mr.  Justice  Heath,  before 
whom  the  cause  was  tried,  rejected  the 
evidence  ;  and  he  further  ruled  that  the 
act  of  God,  which  could  excuse  the  de- 
fendant, must  be  immediate;  but  this 
was  too  remote  ;  and  directed  the  jury 
to  find  a  verdict  for  the  plaintiff,  and 
they  accordingly  did  so.  The  case  was 
afterwards  submitted  to  the  considera- 
tion of  the  Court  of  King's  Bench,  who 
approved  of  the  direction  of  the  learned 
judge  at  the  trial,  and  the  plaintiff"  suc- 
ceeded in  the  cause.  There  does  not 
appear  to  have  existed  in  this  case  any 
bill  of  lading,  or  other  instrument  of 
contract ;  and  the  question,  therefore, 
depended  upon  general  principles,  and 
not  upon  the  meaning  of  any  particular 
word  or  exception.  I\Ir.  Justice  Story 
in  commenting  upon  this  case,  saj-s  :  — 
"  If  the  mast,  which  was  the  immediate 


CH.  XII.] 


BAILMENT. 


'637 


rier ;    a  failure  of  wind   is  put  upon  the  same   footing  as  a 
storm,  (g) 

*  But  whether  the  loss  be  caused  by  excess  or  deficiency  of 
wind,  or  any  other  act  of  God,  if  the  negligence  of  the  car- 
rier mingles  with  it,  he  is  responsible,  (h)  So  he  is  for  a  loss 
by  fire,  whether  on  land  or  at  sea,  unless  it  be  caused  by 
lightning ;  (i)  and  this  rule  is  applied  to  steamboats,  (j)  But 
the  freezing  of  our  navigable  waters,  whether  natural  or  arti- 
ficial, excuses  the  carrier,  unless  his  negligence  cooperates  in 
causing  the  loss,  (k) 


cause  of  the  loss,  had  not  been  in  the 
way;  but  the  bank  had  been  suddenly- 
removed  by  an  earthquake,  or  the  re- 
moval of  the  bank  had  been  unknown, 
and  the  vessel  had  gone  on  the  bank 
in  the  usual  manner,  the  decision  would 
have  been  otherwise."  Story  on  Bail- 
ment, sect.  517.  And  this  opinion 
seems  to  be  supported  by  the  case 
of  Sniyrl  v.  Niolon,  2  Bailey,  421, 
where  it  is  held  that  a  loss  caused  by 
a  boat's  running  on  an  unknown  '  snag ' 
in  the  usual  channel  of  the  river  is 
referable  to  tlie  act  of  God ;  and  the 
carrier  will  be  excused.  See  also 
Eaulkner  v.  Wright,  Rice,  107;  and 
Williams  v.  Grant,  1  Conn.  487.  On 
the  other  hand,  in  Friend  v.  Woods,  6 
Gratt.  189,  wliere  a  common-carrier  on 
the  Kanawha  river  stranded  his  boat 
upon  a  bar  recently  formed  in  the  ordi- 
nary channel  of  the  river,  of  tiie  exist- 
ence of  wiiich  he  was  previously  igno- 
rant, he  was  held  liable  for  damage 
done  to  the  freight  on  board  his  boat. 
And  this  last  case  has  received  the  sup- 
port of  Mr.  Wallace,  one  of  the  learned 
American  editors  of  Smith's  Leading 
Cases.  See  his  note  to  Coggs  v.  Ber- 
nard, 1  Smith's  L.  C.  82. 

{g)  Thus  where  a  vessel  was  beating 
up  the  Hudson  river  against  a  light  and 
variable  wind,  and  being  near  shore, 
and  while  changing  her  tack,  tiic  wind 
suddenly  failed,  in  consequence  of 
which  she  ran  aground  and  sunk;  it 
was  held  that  the  sudden  failure  of  the 
wind  was  the  act  of  God,  and  excused 
the  master;  there  being  no  negligence 
on  his  part.  And  <S/Je?iccr,  J.,  said  :  — 
"  The  case  of  Amies  v.  Stevens,  1 
Strange,  128,  shows  that  a  sudden  gust 
of  wind,  by  which  the  hoy  of  the  car- 
rier,   shooting    a    bridge,    was    driven 


against  a  pier  and  overset,  by  the  vio- 
lence of  the  shock,  has  been  adjudged 
to  be  the  act  of  God,  or  vis  divina.  The 
sudden  gust  in  the  case  of  the  hoyman, 
and  the  sudden  and  entire  failure  of  the 
wind  sufficient  to  enable  the  vessel  to 
beat,  are  equally  to  be  considered  the 
acts  of  God.  He  caused  the  gust  to 
blow  in  the  one  case ;  and  in  the  other 
the  wind  was  stayed  by  Him."  Colt  v. 
McMechen,  6  Johns.  ICO.  This  case, 
however,  has  met  with  the  disapproba- 
tion of  Mr.  Wallace.  See  note  to  Coggs 
V.  Bernard,  itbi  supra. 

(h)  Amies  v.  Stevens,!  Strange,  128; 
Williams  v.  Branson,  1  Murph.  417; 
Williams  v.  Grant,  1  Conn.  487  ;  Camp- 
bell V.  Morse,  Harper,  468  ;  Clark  v. 
Barnwell,  12  How.  272. 

(«■)  Forward  v.  Pittard,  1  T.  E.  27 ; 
Thorogood  v.  Marsh,  Gow,  105  ;  Hale 
V.  N.  J.  Steam  Navigation  Co.  15  Couhj 
539,  545;  Parker  v.  Fhigg,  26  Maine, 
181  ;  Parsons  v.  Monteath,  13  Barb. 
353 ;  Chevallier  v.  Straham,  2  Texas, 
115. 

(j)  Gilmore  v.  Carman,  1  S.  &  M. 
279. 

(k)  Parsons  v.  Hardy,  14  Wend.  215. 
But  the  carrier  is  nevertheless  bound 
to  exercise  ordinary  forecast  in  antici- 
pating the  obstruction ;  must  use  the 
proper  means  to  overcome  it ;  and  ex- 
ercise due  diligence  to  accomplish  the 
transportation  he  has  undertaken,  as 
soon  as  the  obstruction  ceases  to  ope- 
rate, and  in  the  mean  time  must  not  be 
guilty  of  negligence  in  the  care  of  the 
property.  Bowman  v.  Tcali,  23  Wend. 
306.  See  also  Lowe  r.  Moss,  12  111. 
477.  And  where  damage  was  done  to 
a  cargo  by  water  escaping  through  the 
pipe  of  a  steam-boiler,  in  consequence 
of  the   pipe   having   been   cracked   by 

[G5t)] 


638 


THE   LAW   OF    CONTRACTS. 


[book  III. 


The  carrier  is  not  liable  for  any  loss  from  natural  decay  of 
perishable  goods ;  such  as  fruit  or  the  like  ;  or  the  fermenta- 
tion of  liquors,  or  their  evaporation  or  leakage.  (/)  So  far 
*  as  losses  of  this  kind  are  caused  by  the  operation  of  natural 
laws,  they  come  within  the  exception  of  the  "  act  of  God." 
But  the  carrier  is  nevertheless  not  excused  if  the  loss  was 
caused  also  by  his  default,  as  by  bad  stowage,  or  other 
negligence.  And  if  he  is  informed  that  the  goods  are  pe- 
rishable, or  should  know  it  from  the  nature  of  the  goods, 
he  is  bound  to  use  all  reasonable  means  and  precautions 
to  prevent  the  loss,  (m)  So  if  a  particular  notice  is  given 
him ;  as  by  marking  the  box,  "  Glass,  this  side  up,"  or  the 
like,  he  is  bound  to  take  notice  and  follow  these  directions,  (n) 

Losses  by  the  public  enemy  include  those  only  which  are 
sustained  from  persons  with  whom  the  State  or  nation  is  at 


frost ;  it  Avas  held  that  this  was  not  an 
act  of  God,  but  negligence  in  the  captain, 
in  filling  the  boiler  before  the  time  for 
heating  it,  although  it  was  the  practice 
to  fill  over  night  when  the  vessel  started 
in  the  morning.  And  Best,  C.  J.,  said  : 
"  No  one  can  doubt  that  this  loss  was 
occasioned  by  negligence.  It  is  well 
known  that  frost  will  rend  iron ;  and  if 
so,  the  master  of  a  vessel  cannot  be  jus- 
tified in  keeping  water  within  his  boiler 
in  the  middle  of  winter,  when  frost  may- 
be expected.  The  jury  found  that  this 
was  negligence,  and  I  agree  in  their 
verdict."     Siordet  v.  Hall,  4  Bing.  607. 

(/)  Thus,  if  an  action  be  brought 
against  a  carrier  for  negligently  driving 
his  cart,  so  that  a  pipe  of  wine  was 
burst  and  lost,  it  will  be  good  evi- 
dence for  the  defendant  that  the  wine 
was  upon  the  ferment,  and  when  the 
pipe  was  burst  he  was  driving  gently. 
Per  Lord  Holt,  in  Farrar  v.  Adams, 
Bull.  N.  P.  69.  See  also  Leech  v.  Bald- 
win, 5  Watts,  446  ;  Warden  v.  Greer,  6 
"Watts,  424  ;  Clark  v.  Barnwell,  12  How. 
272.  And  where  there  is  a  custom  to 
carry  goods  in  open  wagons,  of  which 
the  sender  had  notice,  the  carrier  is  not 
liable  for  injuries  caused  by  rains  during 
the  transportation.  Chevaillier  v.  Pat- 
ton,  10  Texas,  344. 

(m)  Ibid. 

(n)  Thus,  where  a  box  containing  a 
glass  bottle  filled  with  oil  of  cloves,  de- 
livered to  a  common-carrier,  was  mark- 
ed, "  Glass  —  with  care — this  side  up ;  " 
[660] 


it  was  held  that  this  was  a  sufficient  no- 
tice of  the  value  and  nature  of  the  con- 
tents to  charge  him  for  the  loss  of  the 
oil,  occasioned  by  his  disregarding  such 
direction.  And  Shaw,  C.  J.,  said  :  — 
"  It  is  not  denied  that  the  box  was 
marked,  '  Glass — with  care  —  this  side 
up,'  which  was  quite  sufficient  notice  to 
the  defendant  that  the  article  was  valu- 
able, and  liable  to  injury  from  rough 
handling  and  other  causes,  and  that 
there  was  danger  in  carrying  it  in  any 
other  position  than  the  one  indicated  by 
the  inscription.  As  the  carriage  is  a 
matter  of  contract,  as  the  owner  has  a 
right  to  judge  for  himself  what  position 
is  best  adapted  to  carrying  goods  of  this 
description  with  safety,  and  to  direct 
how  they  shall  be  carried,  and  as  the 
carrier  has  a  right  to  fix  his  own  rate 
for  the  carriage,  or  refuse  altogether  to 
take  the  goods  with  such  directions,  the 
court  are  all  of  opinion,  that  if  a  car- 
rier accepts  goods  for  carriage,  thus 
marked,  he  is  bound  to  cany  the  goods 
in  the  manner  and  position  required  by 
the  notice.  Here  it  is  in  evidence,  and 
not  denied,  that  the  box  was  stowed  in 
such  a  manner  that  the  marked  side  was 
not  kept  up,  and  consequently  the  large 
bottle,  which  was  broken  by  some  cause 
in  the  passage,  after  it  was  stowed  and 
before  its  arrival,  bore  its  Aveight  upon 
its  side  and  not  on  its  bottom."  Has- 
tings V.  Pepper,  11  Pick.  41.  See  also 
Sager  v.  Portsmouth,  &c.,  Railroad  Co., 
31  Maine,  228. 


CH.   XII.] 


BAILMENT. 


639 


war ;  and  pirates  on  the  high  seas,  who  are  "  the  enemies  of 
all  mankind ;  "  (o)  but  not  thieves ;  nor  robbers ;  nor  mobs  ; 
nor  rioters,  insurgents,  or  rebels,  (p)  But  this  principle  may 
be  affected  by  the  rule  that  robbery  at  sea  is  piracy. 


*  SECTION  VI. 


WHO    IS   A   COMMON-CARRIER. 


To  determine  who  is  a  common-carrier,  we  adopt  the  defi- 
nition of  Mr.  Chief  Justice  Parker  of  Massachusetts.  "  He 
is  one,  who  undertakes,  for  hire,  to  transport  the  goods  of 
such  as  choose  to  employ  him,  from  place  to  place."  (q)  And 
we  regard  this  as  a  true  definition,  although  in  some  of  the 
States  it  has  been  held  that  a  wagoner  who  carried  goods 
on  a  special  request,  although  such  carrying  was  not  his 
general  business,  but  only  occasional  and  incidental,  was 
still  a  common-carrier,  (r)     It  may  sometimes  be  difficult  to. 


(o)  Story  on  Bailm.  H  25,  526  ;  Ang. 
Com.  Car.  §  200.  We  have  ventured  to 
include  pirates  within  the  exception  of 
"  public  enemies,"  on  the  authority  of 
these  eminent  text-writers.  The  cases, 
however,  which  they  cite,  arose  upon 
bills  of  lading,  which  contained  the  ex- 
ception of  the  "  perils  of  the  sea  ;  "  and 
the  only  question  made  in  those  cases 
was  whether  a  loss  by  pirates  came 
within  tiie  latter  exception  ;  and  the 
testimony  of  merchants  was  taken  as  to 
the  mercantile  usage  in  that  respect. 
See  Pickering  v.  Barkley,  2  Rol.  Abr. 
248,  Styles,  132  ;  Barton  v.  Wolliford, 
Comb.  56. 

(/?)  Morse  v.  Slue,  1  Vent.  190,  238. 

(q)  D wight  V.  Brewster,  1  Pick.  50, 
53.  A  similar  definition  is"  given  in 
Robertson  v.  Kennedy,  2  Dana,  430 ; 
Elkins  V.  Boston  &  Maine  R.  R.,  3 
Foster,  275 ;  Mcrshon  v.  Hobensack,  2 
New  Jersey,  373.  So  in  Gisbourn  v. 
Hurst,  1  Salk.  249,  it  was  resolved  that 
"  any  man  undertaking  for  hire  to  carry 
the  goods  of  all  persons  indifterently  is 
a  common-carrier." 

(r)  Gordon  v.  Hutchinson,  1  W.  &  S. 
285.   In  this  case  the  defendant,  being  a 

VOL.  I.  56 


farmer,  applied  at  the  store  of  the  plain- 
tiff for  the  hauling  of  goods  from  Lew- 
istown  to  Bcllcfonte,  upon  his  return 
from  the  former  place,  where  he  was 
going  with  a  load  of  iron.  He  received 
an  order  and  loaded  the  goods.  On 
the  way,  tlie  liead  came  out  of  a  hogs- 
head of  molasses,  and  it  was  wliolly 
lost ;  and  this  action  was  brought  to  re- 
cover the  price  of  it.  Tiie  defendant 
contended  that  he  was  not  subject  to  the 
responsibilities  of  a  common-carrier,  but 
only  answerable  for  negligence,  inas- 
much as  he  was  only  employed  occa- 
sionally to  carry  for  liire.  But  the 
learned  judge  before  whom  the  cause 
was  tried  instructed  the  jury  that  he 
was  liable  as  a  common-carrier.  And 
the  .Supreme  Court  held  the  instruction 
to  be  correct.  Gibson,  C.  J.,  said  :  — 
"  The  best  definition  of  a  common-car- 
rier, in  its  application  to  tlie  business 
of  this  country,  is  that  which  Mr.  Jcre- 
my  (Law  of  Carriers,  4)  has  taken  from 
Gisbourn  v.  Hurst,  1  Salk.  249,  [see 
preceding  note,]  which  was  the  case  of 
one  who  was  at  first  not  thought  to  be 
a  common-carrier,  only  because  he  had, 
for  some  small  time  before,  brought  cheese 

[GGl] 


6-40 


THE   LAW   OF    CONTRACTS. 


[book  III. 


draw  the  line  ;  and  more  difficult  in  this  country  than  else- 
where, where  men  so  often  engage  in  a  variety  of  employ- 
ments; but  that  the  rule  of  law  is  as  we  have  stated  we  can- 
not doubt. 


to  London,  and  taken  such  goods  as  he 
could  get  to  carry  back  into  the  country, 
at  a  reasonable  price  ;  but  the  goods 
having  been  distrained  for  the  rent  of  a 
barn,  into  which  he  had  put  his  ■vvagon 
for  safe  keeping,  it  was  finally  resolved 
that  any  man  undertaking  to  carry  the 
goods  of  all  persons  indifferently,  is  as  to 
exemption  from  distress  a  common-car- 
rier. Mr.  Justice  Story  has  cited  this 
case  (Commentaries  on  Bailment,  322) 
to  prove  that  a  common-carrier  is  one 
who  holds  himself  out  as  ready  to  engage 
•in  the  transportation  of  goods  for  hire 
as  a  business,  and  not  as  a  casual  occu- 
pation pi-o  hac  vice.  My  conclusion 
from  it  is  diflerent.  I  take  it  a  wagoner 
who  carries  goods  for  hire  is  a  common- 
carrier,  whether  transportation  be  his 
principal  and  direct  business,  or  an  oc- 
casional and  incidental  employment. 
It  is  true,  the  court  went  no  "further 
than  to  say  the  wagoner  was  a  common- 
carrier,  as  to  the  privilege  of  exemption 
from  distress  ;  but  his  contract  was  held 
not  to  be  a  private  undertaking,  as  the 
court  was  at  first  inclined  to  consider  it, 
but  a  public  engagement,  by  reason  of 
his  readiness  to  carry  for  any  one  who 
would  employ  him,  without  regard  to 
his  other  avocations  ;  and  he  would 
consequently  not  only  be  entitled  to  the 
privileges,  but  be  subject  to  the  respon- 
sibilities of  a  common-carrier ;  indeed, 
they  are  correlative,  and  there  is  no 
reason  why  he  should  enjoy  the  one 
without  being  burdened  with  the  other. 
Chancellor  Kent  (2  Comm.  597.)  states 
the  law,  on  the  authority  of  Robinson 
V.  Dunmore,  2  B.  &  P.  416,  to  be  that 
a  carrier  for  hire  in  a  particular  case,  not 
exercising  the  business  of  a  common-ca.x- 
rier,  is  answerable  only  for  ordinary 
neglect,  unless  he  assume  the  risk  of  a 
common-carrier  by  express  contract  ; 
and  Mr.  Justice  Story,  (Com.  on  Bail- 
ment, 298.)  as  well  as  the  learned  anno- 
tator  on  Sir  William  Jones's  Essay, 
(Law  of  Bailra.  103  d,  note  3.)  does 
the  same  on  the  authority  of  the  same 
case.  There,  however,  the  defendant 
was  held  liable,  on  a  special  contract 
of  warranty,  that  the  goods  should  go 
safe ;  and  it  was  therefore  not  material 
[662] 


whether  he  was  a  general  carrier  or  not. 
The  judges  indeed  said  that  he  was  not 
a  common-carrier,  but  one  who  had  put 
himself  in  the  case  of  a  common-carrier 
by  his  agreement ;  yet  even  a  common- 
carrier  may  restrict  his  responsibility  by 
a  special  acceptance  of  the  goods,  and 
may  also  make  himself  answerable  by  a 
special  agreement  as  well  as  on  the 
custom.  The  question  of  carrier  or 
not  therefore  did  not  necessarily  enter 
into  the  inquiry,  and  we  cannot  sup- 
pose the  judges  gave  it  their  principal 
attention.  But  rules  which  have  re- 
ceived their  form  from  the  business  of 
a  people  whose  occupations  are  definite, 
regular,  and  fixed,  must  be  applied  with 
much  caution,  and  no  little  (Qualifica- 
tion, to  the  business  of  a  people  whose 
occupations  are  vague,  desultory,  and 
irregular.  In  England,  one  who  holds 
himself  out  as  a  general  carrier  is  bound 
to  take  employment  at  the  current  price: 
but  it  will  not  be  thought  that  he  is 
bound  to  do  so  here.  Nothing  was 
more  common  formerly  than  for  wa- 
goners to  lie  by  in  Philadelphia  for  a 
rise  of  wages.  In  England  the  obliga- 
tion to  carry  at  request  upon  the  car- 
riers particular  route  is  the  criterion 
of  the  profession,  but  it  is  certainly  not 
so  with  us.  In  Pennsylvania  we  had 
no  carriers  exclusively  between  particu- 
lar places,  before  the  establishment  of 
our  public  lines  of  transportation  ;  and, 
according  to  the  English  principle,  we 
could  have  had  no  common-carriers,  for 
it  was  not  pcetended  that  a  wagoner 
could  be  compelled  to  load  for  any  part 
of  the  continent.  But  the  policy  of 
holding  him  answerable  as  an  insui-er 
was  more  obviously  dictated  by  the  soli- 
tary and  ipountainous  regions  through 
which  his  course  for  the  most  part  lay, 
than  it  is  by  the  frequented  thorough- 
fares of  England.  But  the  Pennsylva- 
nia wagoner  was  not  always  such  even 
by  profession.  No  inconsiderable  part 
of  the  transportation  was  done  by  the 
farmers  of  the  interior,  who  took  their 
produce  to  Philadelphia,  and  procured 
return  loads  for  the  retail  merchants  of 
the  neighboring  towns;  and  many  of 
them  passed  by  their  homes  with  loads 


CH.   XII.]  BAILMENT.  641 

We  regard  truckmen,  porters,  and  the  like,  who  undertake 


to  Pittsburg  or  "Wheeling,  the  principal 
points  of  embarkation  on  the  Ohio. 
But  no  one  supposed  they  were  not  re- 
sponsible as  common-carriers ;  and  they 
always  compensated  losses  as  such. 
They  presented  themselves  as  appli- 
cants for  employment  to  those  who 
could  give  it ;  and  were  not  distinguish- 
able in  their  appearance  or  in  the  equip- 
ment of  their  teams  from  carriers  by 
profession.  I  can  readily  understand 
why  a  carpenter  encouraged  by  an  em- 
ployer to  undertake  the  job  of  a  cabinet 
maker,  shall  not  be  bound  to  bring  the 
skill  of  a  workman  to  the  execution  of 
it;  or  why  a  farmer  taking  his  horses 
from  the  plough,  to  turn  teamster  at  the 
solicitation  of  his  neighbor,  shall  be  an- 
swerable for  nothing  less  than  good 
faith ;  but  I  am  unable  to  understand 
why  a  wagoner,  soliciting  the  employ- 
ment of  a  common-carrier,  shall  be 
prevented  by  the  nature  of  any  otlier 
employment  he  may  sometimes  follow 
from  contracting  the  responsibility  of 
one.  What  has  a  merchant  to  do  with 
the  private  business  of  those  who  pub- 
licly solicit  employment  from  him  ? 
They  offer  themselves  to  him  as  com- 
petent to  perform  the  service  required, 
and,  in  the  absence  of  express  reserva- 
tion, they  contract  to  perform  it  on  the 
usual  terms,  and  under  the  usual  re- 
sponsibility. Now.  what  is  the  case 
here  ?  The  defendant  is  a  farmer,  but 
has  occasionally  done  jobs  as  a  carrier. 
That,  however,  is  immaterial.  He  ap- 
plied for  the  transportation  of  these 
goods  as  a  matter  of  business,  and,  con- 
sequently, on  the  usual  conditions.  His 
agency  was  not  sought  in  consequence 
of  a  special  confidence  reposed  in  him  — 
there  was  nothing  special  in  the  case  — 
on  the  contrary,  the  employment  was 
sought  by  himself,  and  there  is  nothing 
to  show  that  it  was  given  on  terms  of 
diminished  responsibility."  It  will  be 
seen  that  the  learned  Chief  Justice 
places  considerable  reliance  upon  the 
fact  that  the  defendant  applied  to  the 
plaintiff  to  get  the  goods  to  carry;  and  it 
is  by  no  means  certain  that  the  decision 
would  have  been  the  same,  if  the  appli- 
cation had  come  from  the  plaintiff. 
But  we  arc  not  aware  of  any  other  case 
in  which  such  a  distinction  is  taken. 
The  decision  receives  support,  however, 
independently  of  this  distinction,  from 
the  case  of  McClure  v.  Richardson,  Rice, 


215.  In  that  case  the  defendant  was 
the  owner  of  a  boat,  in  which  he  was 
accustomed  to  carry  his  oivn  cotton  to 
Charleston  :  and  occasionally,  when  he 
had  not  a  load  of  his  own,  to  take  for 
his  neighbors,  they  paying  freight  for 
the  same.  One  Howzer  was  the  mas- 
ter, or  patroon  of  the  boat,  and  the  gene- 
ral habit  was  for  those  who  wished  to 
send  their  cotton  by  the  defendant's 
boat  to  apply  to  the  defendant  himself. 
On  this  occasion  the  patroon  had  been 
told  to  take  Col.  Goodwin's  and  Mr. 
Dallas's  cotton,  which  he  had  done, 
when  the  plaintiff  applied  to  Howzer, 
in  the  absence  of  the  defendant,  to  take 
on  board  ten  bales  of  his  cotton,  asking 
him  if  it  was  necessary  to  apply  to  the 
defendant  himself,  to  which  Howzer 
replied  that  he  thought  not,  and  received 
the  cotton  ;  it  was  hdd,  that  under 
the  circumstances,  the  defendant  was 
bound  by  the  act  of  Howzer,  as  being 
within  the  general  scope  of  the  author- 
ity conferred  upon  him.  by  placing  him 
in  the  situation  of  master  of  the  boat, 
and  that  the  defendant  was  consequent- 
ly chargeable  as  a  common-carrier  for 
any  loss  of  or  damage  to,  the  plaintiff's 
cotton.  —  So  too  it  has  been  laid  down 
in  general  terms,  in  several  cases,  that 
all  persons  carrying  goods  for  hire  come 
under  the  denomination  of  common- 
carriers.  See  Moses  v.  Xorris,  4  New 
Hamp.  304  ;  Tw'nev  v.  Wilson,  7  Yerg. 
340;  Craig  r.  Childress,  Peck,  270: 
McClures  v.  Hammond.  1  Bay,  99.  But 
it  would  seem  to  be  an  insuperable 
objection  to  all  these  cases  that  they 
exclude  from  the  common-carrier  one 
of  his  most  important  characteristics, 
namely,  his  duty  to  can-y  for  all  who 
may  wish  to  employ  him  ;  for  it  is  con- 
ceded in  several  of  them  that  the  indi- 
vidual whom  they  hold  liable  as  a  com- 
.  mon-carrier  was  under  no  obligation  to 
undertake  the  carrying  in  question,  un- 
less he  had  chosen  so  to  do.  The  case 
of  Chevallier  v.  Straham,  2  Texas, 
115,  may  be  thought  to  favor  views 
similar  to  those  declared  in  the  cases 
already  cited,  but  we  think  it  docs  not. 
It  appeared  in  that  case  that  the  defend- 
ant's principal  business  was  farming, 
but  that  at  a  certain  period  of  the  year, 
known  as  the  hauling  season,  he  en- 
gaged in  the  forwarding  business,  and 
ran  his  wagon  whenever  he  met  with 
an  opportunity.     Under  these  circum- 

[663] 


-641 


THE   LAW    OP   CONTRACTS. 


[book  III. 


generally  to  carry  goods  from  one  part  of  a  city  to  another, 


stances,  he  was  held  liable  as  a  common- 
carrier.  And  the  court  said  :  —  "  From 
a  comparison  of  the  various  authorities, 
to  which  we  have  referred  for  the 
distinguishing  characteristics  of  both 
common  and  private  carriers,  it  may  be 
laid  down  as  a  rule,  that  all  persons 
who  transport  goods  from  place  to 
place,  for  hire,  for  such  persons  as  see 
fit  to  employ  them,  whether  usually  or 
occasionally,  whether  as  a  principal  or 
an  incidental  and  subordinate  occupa- 
tion, are  common-carriers,  and  incur  all 
their  responsibilities.  There  are  no 
grounds  in  reason  why  the  occasional 
carrier,  who  periodically  in  every  re- 
curring year,  abandons  his  other  pur- 
suits, and  assumes  that  of  transporting 
goods  for  the  public,  should  be  exempted 
from  any  of  the  risks  incurred  by  those 
who  make  the  carrying  business  their 
constant  or  principal  occupation.  For 
the  time  being  he  shares  all  the  advan- 
tages arising  from  the  business ;  and 
as  the  extraordinary  responsibilities  of 
a  common-carrier  are  imposed  by  the 
policy  and  not  the  justice  of  the  law, 
this  policy  should  be  uniform  in  its 
operation  —  imparting  equal  benefits, 
and  inflicting  the  like  burdens  upon  all 
who  assume  the  capacity  of  public  car- 
riers, whether  temporarily  or  perma- 
nently, periodically  or  continuously." 
It  will  be  seen,  therefore,  that  the  only 
question  with  the  caurLin  this  case  was, 
whether  it  was  neces  *ry  to  constitute 
one  a  common-carrier  that  he  should 
hold  himself  out  as  such  continuous- 
ly, or  whether  it  was  sufficient  if  he 
held  himself  out  as  such  during  a  cer- 
tain period  of  the  year.  And  there 
would  certainly  seem  to  be  no  reason 
why  one  who  holds  himself  out  to  the 
public  as  a  common-carrier,  for  a  cer- 
tain season  in  the  year,  should  not  be 
liable  as  such.  We  think  it  is  obvious,, 
from  the  facts  and  circumstances  of  this 
case,  that  the  defendant  had  held  him- 
self out  to  the  public  in  such  a  manner 
that  he  would  have  incurred  a  liability 
if  he  had  refused  to  carry  for  any  one 
who  wished  to  employ  him  during  the 
season  in  question ;  and  the  court  held 
him  to  be  a  common-carrier  on  this 
ground,  and  carefully  distinguished  him 
from  one  who  undertakes  to  carry  for 
hire  in  a  particular  instance  and  under  a 
special  contract.  On  the  whole,  it  seems 
to  be  clear  that  no  one  can  be  considered 

[6G4] 


as  a  (;ommon -carrier,  unless  he  has  in 
some  way  held  himself  out  to  the  public 
as  a  carrier,  in  such  a  manner  as  to  ren- 
der him  liable  to  an  action  if  lie  should 
refuse  to  carry  for  any  one  who  wished 
to  employ  him.     That  such  is  the  true 

test,  see  v.  Jackson,   1    Ilayw. 

14;  Fish  v.  Chapman,  2  Geo.  349; 
Samms  v.  Stewart,  20  Ohio,  69.  In 
Fish  V.  Chapman,  Mr.  Justice  Nisbet 
declares  that  Gordon  v.  Hutchinson  is 
opposed  to  the  principles  of  the  com- 
mon law,  and  its  rule  wholly  inexpedi- 
ent. The  case  of  Satterlee  v.  Groat, 
1  Wend.  272,  is  also  a  very  important 
one  upon  this  point.  It  appeared  that 
the  defendant  had  been  a  common-car- 
rier between  Schenectady  and  Albany, 
previous  to  1819.  He  then  sold  out 
all  his  teams  but  one,  which  he  kept  for 
agricultural  purposes  on  his  farm.  One 
witness,  however,  testified  that  the  de- 
fendant employed  his  team  in  the  car- 
rying and  forwarding  business,  as  occa- 
sions offered,  until  1822  or  1823.  But 
subsequent  to  that  period,  there  was  no 
evidence  of  his  carrying  or  forwarding 
a  single  load,  until  April,  1824,  when 
one  John  Dows  applied  to  him  to  bring 
some  loads  for  him  from  Albany  to 
Schenectady,  to  which  the  defendant 
reluctantly  consented,  and  despatched 
one  Asia  with  his  team  for  the  purpose, 
with  special  instructions  to  bring  no- 
thing for  any  other  person  ;  and  if 
Dows's  goods  were  not  ready,  to  come 
back  empty.  He  brought  two  loads, 
and  returned  for  a  third,  under  the 
same  instructions,  repeated  again  and 
again ;  but  Dows's  third  load  not  being 
ready,  instead  of  returning  empty  as  he 
was  directed  to  do,  he  applied  to  the 
plaintiffs  for  a  load,  which  they  furnish- 
ed him,  to  be  carried  to  Frankfort,  in 
Herkimer  county.  He  arrived  at  Sche- 
nectady late  at  night.  The  next  morn- 
ing it  was  discovered  that  one  of  the 
boxes  had  been  broken  open,  and  a 
part  of  the  goods  stolen.  The  defend- 
ant disavowed  all  responsibility  for  the 
goods,  before  it  was  discovered  that  any 
of  them  had  been  taken,  and  declared 
that  Asia  had  violated  his  express  in- 
structions in  bringing  them.  Upon 
these  facts  the  court  held  that  the  de- 
fendant was  not  liable.  Sutherland,  J., 
said: — "The  defendant  stood  upon 
the  same  footing  as  though  he  had 
never  been  engaged  in  the  forwarding 


CH.  XII.] 


BAILMENT. 


642 


as  common-carriers ;  although  this  seems  to  be  doubted,  (i) 
That  wagoners  and  teamsters  who  carry  goods  from  one 
city  to  another  are  so,  is  certain. 


business.  He  had  abandoned  it  entire- 
ly certainly  one  year,  and,  according  to 
the  weight  of  evidence,  four  years  pre- 
vious to  this  transaction.  He  makes  a 
special  contract  with  Dows  to  bring 
goods  for  him  from  Albany,  and  gives 
his  teamster  express  instructions  to 
bring  goods  for  no  one  else.  He  was 
acting  under  a  special  contract,  and  not 
in  the  capacity  of  a  common-carrier. 
Is  he  then  responsible  for  the  act  of  his 
servant,  done  in  violation  of  his  instruc- 
tions, and  not  in  the  ordinary  course  of 
the  business  in  which  he  was  employed  ? 
If  a  farmer  send  his  servant  with  a  load 
of  wheat  to  market,  and  he,  without 
any  instructions  from  his  master,  ap- 
plies to  a  merchant  for  a  return  load, 
and  absconds  with  it,  is  the  master  re- 
sponsible ?  Most  clearly  not.  It  was 
an  act  beyond  the  scope  of  the  general 
authority  of  the  servant ;  quoad  hoc, 
therefore  he  acted  for  himself,  and  on 
his  own  responsibility,  and  not  for  his 
employer." 

(s)  In  Brind  v.  Dale,  8  C.  &  P.  207, 
Lord  Abinger  expressed  the  opinion  at 
Nisi  Prius,  that  a  town  carman,  whose 
carts  ply  for  hire  near  the  wharves,  and 
who  lets  them  by  the  hour,  da)%  or  job, 
is  not  a  common-carrier.  The  cor- 
rectness of  this  opinion  is,  however,  se- 
verely questioned  by  Mr.  Justice  Story. 
'•  What  substantial  distinction  is  there," 
says  he,  "  in  the  case  of  parties  who 
ply  for  hire  in  the  carriage  of  goods  for 
all  persons  indifterently,  whether  the 
goods  are  carried  from  one  town  to 
another,  or  from  one  place  to  another 
within  the  same  town  ?  Is  there  any 
substantial  difference,  whether  the  pai'- 
tics  have  fixed  termini  of  their  business 
or  not,  if  they  hold  tlicmsclves  out  as 
ready  and  willing  to  carry  goods  for 
any  persons  whatsoever,  to  or  from  any 
places  in  the  same  town,  or  in  different 
towns?"  See  Story  on  Bailm.  §  496, 
n.  1.  So  too  the  law  was  expressly  ad- 
judged, agreeably  to  what  we  have 
stated  in  the  text,  in  Robertson  v.  Ken- 
nedy, 2  Dana,  430.  That  was  an  action 
against  tlic  defendant  for  the  loss  of  a 
hogshead  of  sugar,  which  he,  as  a  com- 
mon-carrier, had  undertaken,  for  a  rea- 
sonable compensation,  to  carry  from 
the  bank  of  the  river  iu  Brandenburg 

56* 


to  the  plaintiff's  store  in  the  same  town. 
At  the  trial,  the  plaintiff  introduced 
evidence  tending  to  show  that  tlic  de- 
fendant had  been  in  the  habit  of  haul- 
ing for  hire,  in  the  town  of  Branden- 
burg, for  every  one  who  applied  to  him, 
with  an  ox  team,  driven  by  his  slave ; 
that  he  had  undertaken  to  haul  for  the 
plaintiff  the  hogshead  in  question,  and 
that  after  the  defendant's  slave  had 
placed  the  hogshead  on  a  slide,  for  the 
purpose  of  hauling  it  to  the  defendant's 
store,  the  slide  and  hogshead  slipped 
into  the  river,  whereby  the  sugar  was 
spoiled.  Under  these  circumstances, 
the  court  held  that  the  defendant  was 
liable  as  a  common-carrier.  And  Ni- 
cholas, J.,  said  :  —  "  Every  one  who  pur- 
sues the  business  of  transporting  goods 
for  hire,  for  the  public  generally,  is  a 
common-carrier.  According  to  the 
most  approved  definition,  a  common- 
carrier  is  one  who  undertakes  for  hire 
or  reward  to  transport  the  goods  of  all 
such  as  choose  to  employ  him  from 
place  to  place.  Draymen,  cartmen, 
and  porters,  who  undertake  to  carry 
goods  for  hire,  as  a  common  employ- 
ment, from  one  part  of  a  town  to  ano- 
ther, come  within  the  definition.  So 
also  docs  the  driver  of  a  slide  with  an 
ox  team.  The  mode  of  transporting  is 
immaterial."  And  in  lugate  v.  Ciiristie, 
3  Carr.  &  Kir.  CI,  where  the  defendant 
who  was  a  lighterman  carrying  goods 
from  wharves  to  ships  for  anybody  who 
employed  him,  was  sued  for  100  cases 
of  tigs  lost  by  reason  of  the  lighter  con- 
taining them  being  run  down  by  a 
steamer,  and  Mr.  Justice  Story's  opin- 
ion as  stated  above  was  cited  for  the 
plaintiffs,  .4Werso;i,  B.,  said,  "Mr.  Jus- 
tice Story  is  a  great  authority,  and  if  we 
would  but  adhere  to  principle  the  law 
would  be  what  it  ought  to  be,  a  science. 
There  may  be  cases  on  all  sides,  but  I 
will  adhere  to  principle  if  I  can.  If  a 
person  holds  himself  out  to  carry  goods 
for  every  one  as  a  business,  and  he  thus 
carries  from  the  wharves  to  the  ships  in 
harbor,  he  is  a  common-carrier,  and  if 
tlic  defendant  is  a  common-carrier  iie  is 
liable  here.  There  must  be  a  verdict 
for  the  plaintiff."  The  same  rule  was 
applied  by  Lord  Campbell  to  a  person 
who  collected  goods  in  town  to  go  by 

[665] 


643-*  644 


THE  LAW   OF   CONTRACTS. 


[book  in. 


Proprietors  of  stage  coaches  are  not  common-carriers  of 
goods  necessarily;  but  are  so  if  they  carry  goods  other  than 
those  of  their  passengers,  usually,  and  hold  themselves  out 
as  carrying  for  all  who  choose  to  employ  them,  (t) 

*In  the  reign  of  James  I.  the  responsibilities  of  a  common- 
carrier  of  goods  by  land  were  held  to  be  applicable  to  a 
bargeman ;  (u)  and  it  has  been  declared  that  there  is  no  dif- 
ference between  the  carrier  by  land  and  the  carrier  by  wa- 
ter, (y)  Perhaps  this  assertion  is  too  broad ;  but  the  weight 
of  authority  in  this  country  seems  to  have  determined  that  a 
common-carrier  of  goods  by  water  is  responsible  for  all  losses 


railway,  but  he  himself  carried  them 
only  to  the  railway  station.  Hellaby  v. 
Weaver,  1 7  Law  Times  Kep.,  July  8, 
1851,  sittings  in  London  after  Trinity 
term. 

(t)  "  If  a  coachman  commonly  carry 
goods,  and   take  money  for  so  doing, 
he  will  be  in  the  same  case  with  a  com- 
mon-carrier, and   is  a  carrier  for  that 
purpose,  whether  the  goods  are  a  pas- 
senger's or  a  stranger's."     Per  Jones,  J., 
in  Lovett  v.  Hobbs,  2  Show.  127.     See 
also,    to    the    same   point,   Dwight    v. 
Brewster,    1    Pick.    50  ;    Beckman    v. 
Shouse,  5  Kawle,  179;   Clark  v.  Fax- 
ton,  21  Wend.  153  ;  Jones  v.  Voorhees, 
10    Ohio,  145  ;    Merwin  v.   Butler,  17 
Conn.  138.     But  in  Shelden  r.  Robin- 
son, 7  New  Hamp.  157,  it  was  held  that 
the  driver  of  a  stage  coach,  in  the  gene- 
ral employ  of  the  proprietors   of  the 
coach,  and  in  the  habit  of  transporting 
packages  of  money  for  a  small  compen- 
sation,   which   was    uniform    whatever 
might  be  the  amount  of  the  package, 
was  a  bailee  for  hire,  answerable   for 
ordinary  negligence,  and  not  subject  to 
the   responsibilities   of  a  common-car- 
rier: there  being  no  evidence  to  show 
him  a  common-carrier,  farther  than  the 
fact  that  he  took  such  packages  of  mo- 
ney as  were   oftered.     Parker,  J.,  thus 
stated    the    grounds    of    the    decision. 
"  It  has  not   been   suggested  that   the 
proprietors  are  liable  in  this  case ;  and 
the  evidence  does  not  show  the  defend- 
ant  a   common-carrier.      It  does    not 
show  him  to  have  exercised  the  busi- 
ness of  carrying  packages,  as  a  public 
employment,   because   his   public  em- 
ployment was  that  of  a  driver  of  a 

stage  coach,  in  the  employ  of  others. 

[666] 


It  does  not  show  that  he  ever  under- 
took to  carry  goods  or  money  for  per- 
sons generally,  although  he  may  in  fact 
have  taken  all  that  was  offered,  as  a 
matter  of  convenience  ;  or  that  he  ever 
held  himself  out  as  ready  to  engage  in 
the  transportation  of  whatever  was  re- 
quested, notwithstanding  it  may  have 
been  unusual  [1 1  for  him  and  other  driv- 
ers to  carry  it.  This  was  not  his  general 
employment,  and  there  is  nothing  to 
show  that  he  would  have  been  liable 
had  he  refused  to  take  this  money,  es- 
pecially as  he  was  in  the  service  of  ano- 
ther, and  as  such  servant  might  have 
had  duties  to  perform  inconsistent  with 
the  duty  of  a  common-carrier.  The 
amount  to  be  paid  for  transportation  is 
also  to  be  considered.  A  common-car- 
rier is  an  insurer,  and  entitled  to  be 
paid  a  premium  for  his  insurance. 
There  being  no  evidence  that  any  com- 
pensation was  agreed  on  between  these 
parties,  it  is  to  be  presumed  that  the 
usual  compensation  was  to  be  paid.  The 
plaintiff  might  have  relied  on  the  usage 
upon  a  claim  of  payment.  And  as  the 
sum  was  small  and  uniform,  whatever 
might  be  the  amount  of  money,  it 
would  seem  very  clear  that  no  one  com- 
mitting a  package  of  money  to  the  de- 
fendant imder  such  circumstances,  and 
without  any  special  agreement,  could 
have  considered  him  an  insurer  of 
safety."  See  also  Bean  v.  Sturtevant, 
8  New  Hamp.  146. 

(i/)  Eich  V.  Knecland,  Cro.  Jac.  (11 
Jac.  1)  330,  Hob.  17. 

(v)  Per  BuUer,  J.,  in  Proprietors  of 
Trent  Navigation  v.  Wood,  3  Esp.  127, 
4  Doug.  287  ;  and  per  Story,  J.,  in  King 
V.  Shepherd,  3  Story,  360. 


CH.   XII.]  BAILMENT.  *645 

excepting  those  caused  by  the  public  enemy,  or  by  those 
causes  provided  for  by  express  contract,  [iv)  Canal  boatmen 
are  such  carriers,  [x)  and  cannot  sell  property  sent  by  them  to 
market  without  express  authority  from  the  owner.  (//)  So 
are  boatmen  on  our  rivers,  (z)  Ferrymen  are  not  common- 
carriers  of  goods  necessarily ;  but  generally  become  so  by 
usage,  (a)  And  this,  although  it  be  a  private  ferry,  not 
established  by  the  authority  of  the  State,  (b)  And  if  it  be  a 
public  ferry,  and  the  tolls  are  regulated  by  law,  and  the  fer- 
ryman is  appointed  by  the  State  executive,  and  gives  bonds 
*with  sureties,  this  does  not  prevent  the  liabilites  of  a  com- 
mon-carrier from  attaching  to  him.  (c) 

Steamboats  are  the  most  common  kind  of  inland  carriers 
by  water  at  the  present  day  ;  and  they  are  undoubtedly  com- 
mon-carriers of  goods,  if  they  fall  within  the  general  defini- 
tion. But  they  may  be  carriers  of  passengers  only.  And 
they  may  be  carriers  of  only  one  particular  kind  of  goods  and 
merchandise.  And  where  a  limitation  of  their  business  of 
this  kind  is  declared  by  them,  and  made  known  to  a  party 
dealing  with  them,  their  liability  is  limited  accordingly,  (d) 
And  a  steamboat  which  is  usually  a  common-carrier,  and  is 
employed  in  towing  a  vessel,  is  not  as  to  this  a  common-car- 
rier ;  but  is  bound  only  to  ordinary  care  and  skill,  (e)     So, 


(w)  Thus,  in  Elliott  v.   Rossell,  10  (r)  Gordon  u.  Buchanan,  5  Yerg.  71 ; 

Johns.  1,  it  was  held  that  masters  and  Tiirney  v.  Wilson,  7  Yerg.  341. 

owners   of  vessels,  who   undertake   to  (a)  Smith  r.   Seward,  3    Barr,  342  ; 

carry  goods  for  hire,  are  liable  as  com-  Pomeroy  v.  Donaldson,  5  Missouri,  3G ; 

mon-carriers,   whether    the   transporta-  Cohen  v.  Hume,  1  McCord,  439 ;  Fisher 

tion   be  from   port  to  port  within   the  v.    Clisbee,    12    111.    344.      See   as   to 

state,  or  beyond  sea,  at  home  or  abroad ;  the  duties  of  ferrymen  in  the  prepara- 

except  so  far  as  they  are  exempted  by  tion   and  management  of  their  boats, 

the  exceptions  in  the  contract  of  cliar-  AVillouKhby  v.  Horridge,  16  E.  L.  &  E. 

ter-party,  or  bill  of  lading,  or  by  statute.  437  ;    Wliito    v.   Winnisimmet   Co.,  7 

See  also  Kemp  r.  Coughtry,  11  Johns.  Cush.  156. 

107;   Crosby  v.  Fitch,  12   Conn.  410;  (6)  Littlejohn  v.  Jones,  2  McMullan, 

Parker  v.  Flagg,  26  Maine,  181  ;  Hast-  365. 

ings  V.  Pepper^ll  Pick.  41  ;  Allen  v.  (c)  Babcock  i;.  Herbert,  3  Ala.  392. 

Sewall,  2   Wend.  327,  6  Wend.  335 ;  (d)    Citizens'    Bank    v.    Nantucket 

McArthurr.  Sears,  21  Wend.  190,  over-  Steamboat  Co.  2  Story,  16. 

ruling  whatever  is  contra  in  Aymar  v.  (e)  This  rule  seems  to  have  been  dc- 

Astor,  6  Cow.  266.  clared  for  the  first  time  by  the  Supreme 

(x)  Harrington  v.  Lylcs,  2  N.&  McC.  Court  of  New  York,  in  the  case  of  Ca- 

88;    De  Mott  v.  Laraway,  14  AVcnd.  ton  v.  Rumney,  13  Wend.  387.      The 

225;  Parsons  v.  Hardy,  14  Wend.  215;  same  question  arose  again  in  the  same 

Spencer  y.  Daggett,  2  Verm.  92.  court,   in    the    case    of   Alexander    v. 

(y)  Arnold  v.  Halcnbake,  5  Wend.  33.  Greene,  3  Hill,  9,  and  was  decided  the 

[6G7] 


646 


THE  LAW   OF   CONTRACTS. 


BOOK  III. 


where  such  a  steamboat  was  hired  to  take  a  vessel  through 
the  ice,  it  was,  in  this  employment,  no  common-carrier.  (/) 
In  the  reign  of  Charles  II.  it  was  decided  that  a  ship  sail- 
ing on  the  ocean  may  be  a  common-carrier ;  (g-)  and  this 
decision  has  since  been  repeatedly  confirmed  ;  {h)  and  it  was 
also  held  that  an  action  lay  equally  against  the  master  and 


same  way.  And  Branson,  J.,  thus  stat- 
ed the  grounds  of  the  decision.  "I 
think  the  defendants  are  not  common- 
carriers.  They  do  not  receive  the  pro- 
perty into  their  custody,  nor  do  they 
exercise  any  control  over  it,  other  than 
such  as  results  from  the  towing  of  the 
boats  in  which  it  is  laden.  They  nei- 
ther employ  the  master  and  hands  of 
the  boats  towed,  nor  do  they  exercise 
any  authority  over  them  beyond  that 
of  occasionally  requiring  their  aid  in 
governing  the  flotilla.  The  goods  or 
other  property  remain  in  the  care  and 
charge  of  the  master  and  hands  of  the 
boat  towed.  In  case  of  loss  by  fire  or 
robbery,  without  any  actual  default  on 
the  part  of  the  defendants,  it  can  hardly 
be  pretended  that  they  would  be  an- 
swerable, and  yet  carriers  must  answer 
for  such  a  loss."  This  case  afterwards, 
however,  came  before  the  Court  of  Er- 
rors, and  M^as  overruled.  7  Hill,  533. 
But  upon  what  principle  of  law  cannot 
be  learned  from  the  opinions  delivered. 
And  in  the  more  recent  case  of  Wells 
V.  Steam  Navigation  Co.  2  Comst.  207, 
in  the  Court  of  Appeals  of  the  same 
State,  this  decision  of  the  Court  of  Er- 
rors is  declared  to  be  of  no  authority, 
and  the  former  decisions  of  the  Su- 
preme Court  are  reestablished.  The 
same  rule  is  declared  in  the  case  of 
Leonardo.  Hendriekson,  18  Penn.  St. 
Hep.  40.  And  Chambers,  J.,  says:  — 
"  The  law  of  liability  of  common  car- 
riers is  one  of  public  policy,  and  is  to  be 
maintained.  T>oes  this  policy  extend 
to  the  towing  of  boats  and  rafts  on  na- 
vigable or  other  waters  1  This  exer- 
cise of  power  is  peculiar  and  limited. 
It  is  generally  for  sliort  distances,  un- 
der the  eye  and  observation  of  the 
owner,  who  may,  and  often  does  accom- 
pany, by  himself  or  his  agents,  the  pro- 
perty that  is  towed  for  him.  If  there 
is  peril  from  the  sudden  rise  of  the  wa- 
ter, or  other  unforeseen  danger,  he  may 
terminate  the  conveyance  at  any  point 
of  safety  in  his  opinion.  The  cargo  on 
a  canal  boat  towed  is  property  in  the 

[668] 


care  of  the  conductors  of  such  boat  as 
common-carriers,  of  which  they  have 
the  exclusive  possession,  and  for  which 
they  are  responsible,  knowing  its  value 
and  quality.  The  captain  or  owner  of 
a  boat  undertaking  to  tow  a  loaded 
canal  boat,  m'c  presume,  neither  inspects 
the  cargo  or  overhauls  it.  His  contract 
has  reference  to  size,  tonnage,  and  ob- 
struction, to  which  the  power  of  his 
boat  is  to  be  applied  ;  and  the  connec- 
tion of  his  boat  by  the  chain  or  rope  with 
the  vessel  and  rafts  to  be  conveyed  to  a 
fixed  point,  is  the  limited  control  he 
has  over  the  property  thus  transported. 
It  was  an  apt  illustration  of  the  learned 
judge  who  delivered  the  opinion  of  the 
court  below,  in  saying  :  '  Wherein  does 
this  case  differ  in  principle  from  that  of 
a  railroad  companj',  or  the  State  fur- 
nishing locomotive  engines  for  drawing 
the  cars  of  individuals  over  the  road  ? 
The  application  of  steam  power  to  tow- 
ing boats,  &c.,  is  only  distinguishable 
from  horse  power  where  it  can  be  used 
in  the  extent  of  the  power.  Would  it 
be  pretended  that  a  man  who  furnished 
horses  and  a  driver,  to  tow  a  boat  or 
raft,  was  an  insurer  as  a  common-car- 
rier for  the  boat  to  be  towed  and  its 
contents  '? ' ''  It  has  been  held,  how- 
ever, in  Louisiana,  that  the  owners  of 
steam  tow-boats  are  liable  as  common- 
carriers.  See  Smith  v.  Pierce,  1  Louis. 
349  ;  Adams  v.  New  Orleans  Steam 
Tow-Boat  Co.  11  Louis.  46.  And  Mr. 
Justice  Kane,  of  the  United  States  Dis- 
trict Court  for  the  Eastern  District  of 
Pennsylvania,  in  the  case  of  Yander- 
slice  V.  Steam  Tow-Boat  Superior,  13 
Law  Reporter,  399,  urged  very  strongly 
the  reasons  for  holding  them  so  liable, 
but  he  did  not  decide  the  point. 

(/)  Steam  Navigation  Co.  r.  Dan- 
dridge,  8  Gill  &  Johns.  248,  320. 

(g)  Morse  v.  Slue,  1  Yeut.  190,  238. 

(A)  Boucher  v.  Lawson,  Cas.  Temp. 
Hardw.  84,  194;  Boson  v.  Sandford,  1 
Show.  29,  101  ;  Goff  v  Clinkard,  cited 
in  Dale  v.  Hall,  1  Wils.  282.  See  also 
cases  cited  ante,  p.  644,  n.  (iv) 


CH.   XII.]  BAILMENT.  *  647 

owners  of  the  vessel,  (i)  But  it  is  not  every  ship  that  car- 
ries goods  for  another  than  her  owner  that  becomes  a  com- 
mon-carrier. If  the  owner,  or  hirer,  loads  her  with  his  own 
cargo,  and  finding  some  room  to  spare,  receives  the  goods  of 
another  person  to  fill  this  room,  the  ship  is  no  common-car- 
rier ;  nor  is  she,  unless  she  is  what  is  sometimes  called  a 
general  ship ;  that  is,  offered  to  the  public,  as  ready  to  take 
any  goods  of  any  owner  to  the  port  to  which  she  is  bound. 
Common-carriers  by  land  have  usually,  if  not  always,  a  cer- 
tain distinct  route,  not  for  each  particular  journey  merely, 
but  for  all  their  journeys.  That  is,  they  are  established  and 
known  to  the  public  as  carrying  upon  such  a  line  of  transit, 
and  upon  no  other.  This  is  true  also  of  ships  belonging  to 
an  established  packet  line.  Such  ships  would  stand  upon 
the  same  footing  as  ordinary  carriers  by  land,  and  there  seems 
to  be  no  reason  why  the  same  rules  of  law  should  not  apply 
to  them.  But  there  is  a  considerable  difference  between  such 
a  ship  and  a  general  ship  which  is  put  up  for  a  voyage  which 
she  never  went  before,  and  is  never  to  go  again.  If  the 
question  were  wholly  unsettled,  it  might  perhaps  be  doubted 
*whether  such  vessel  becomes  a  common-carrier ;  for  if  she 
does,  it  can  hardly  be  denied  that  she  is  bound  to  take  goods 
of  any  one  who  offers  them.  But  the  distinction  between 
a  regular  packet  ship  and  a  general  freighting  ship  for  a 
particular  voyage  does  not  seem  to  have  been  taken  by 
the  courts.  Still,  it  is  usual  in  all  ships,  for  the  master  to 
give  a  bill  of  lading  for  goods  received,  by  which  he  en- 
gages to  deliver  them  to  the  order  of  the  party  from  whom 
he  receives  them,  certain  risks  excepted.  This  ancient  docu- 
ment, in  almost  universal  use  among  mercantile  nations, 
undoubtedly  determines  the  rights  and  duties  of  the  parties, 
so  far  as  it  affects  them.  Thus  it  usually  excepts  "  the 
perils  of  the  sea  ; "  and  then  the  ship  is  not  responsible  for 
a  loss  by  one  of  these  perils,  although  it  could  not  be  referred 
to  the  "act  of  God."  (j)     And  if  other  exceptions  were  in- 

(i)  See  also,  to  this  point,  Boson  r.  the  following  cases.    Williams  v.  Grant, 

Sandford,  1  Show.  29,  101.  1   Conn.  487;    McArthur  v.  Scars,  21 

(j)  As   to  what  losses  come  within  Wend.  190;  Plaistcd  v.  15.  &  K.  Steam 

the  exception  of  "  perils  of  the  sea,"  sec  Navigation  Co.  27  Maine,  132;   Gor- 

[669] 


648*  THE  LAW   OF  CONTRACTS.  [BOOK  III. 

troduced,  they  would  limit  the  liability  accordingly.  So  also 
if  a  ship  is  hired  by  a  charter  party,  to  carry  goods  for  the 
hirers  on  a  certain  voyage,  or  a  certain  time,  and  upon  cer- 
tain terms,  this  charter  determines  the  relation  of  the  parties, 
and  their  rights  and  responsibilities,  and  not  the  law  of  com- 
mon-carriers. 

Railroad  companies  have  carried  goods  but  for  a  short 
period  ;  but  wherever  they  are  established  they  supersede 
almost  all  other  modes  of  conveyance  ;  they  exist  expressly 
to  carry  goods  and  passengers  ;  their  termini  and  routes  are 
definitely  fixed  ;  they  advertise  for  freight,  offering  to  the 
public  the  terms  on  which  they  will  receive.  It  seems  strange 
that  a  doubt  whether  they  were  common-carriers  could  have 
existed ;  that  they  are,  is,  however,  abundantly  settled  by  au- 
thority, (k)  But  there  are  some  peculiarities  in  the  law  which 
regulates  their  liabilities,  which  we  shall  speak  of  hereafter. 


*  SECTION  VII. 


OBLIGATIONS   OF   A   COMMON-CARRIER.  . 

A  private  carrier  may  or  may  not  carry  for  another,  as  he 
prefers.  But  a  common-carrier  is  bound  to  receive  and  carry 
all  the  goods  offered  for  transportation,  subject  to  all  the 
responsibilities  incident  to  his  employment ;  and  is  liable  to 
an  action  in  case  of  refusal.  (/)     But  he  is  entitled  to   his 

don  V.  Buchanan,  5  Yerg.  71  ;  Turney  Co.   10  Met.  472;   Pickford  v.  Grand 

V.   Wilson,    7    Yerg.    340  ;    BuUer    v.  Junction   Railway  Co.  8  M.  &  W.  372 ; 

Fisher,  3  Esp.  67  ;  The  Schooner  Ree-  Norway  Plains  Co.  v.  Boston  &  Maine 

side,  2   Suran.  567 ;  King  v.  Shepherd,  Raih-oad,  1  Gray,  263.     They  are  not, 

3  Story,  349  ;  Whitesides  v.  Thurlkill,  however,  common-carriers  of  goods  by 

12  S.  &  M.  599  ;    The  Rebecca,  Ware,  their  passenger  trains,  and  evidence  of 

188,  210;  Van  Syckel  v.  The  Ewing,  one  or  two  instances  in  which  they  have 

Crabbe,  405 ;    The  Newark,  1   Blatch.  so  carried  will  not  prove  that  they  in- 

203;  Clark  v.  Barnwell,  12  How.  272;  tended  to  hold  themselves  out  as  such 

Rich  I'.  Lambert,  12  How.  347.     As  to  carriers,  but   the  presumption  will   be 

rats,  Laveroni  v.  Drury,  16  E.  L.  &  E.  that   the   goods   were   carried    in    this 

510.     As  to  the  exception  of  loss  by  manner  for  temporary  convenience  only, 

"robbers,"  or  "dangers  of  the  roads,"  Elkins  r.  Boston  &  Maine  Railroad,  3 

see   De  Rothschild    v.    R.  M.   Steam  Fost.  275. 

Packet  Co.  14  E.  L.  &  E.  327.  (/)  Lane  v.  Cotton,  12  Mod.  472.  484  ; 

(k)  See  Thomas  v.  B.  &  P.  Railroad  Jackson  v.  Rogers,  2  Show.  327  ;  John- 

[670] 


CH.  XII. 


BAILMENT. 


'649 


pay ;  he  may  demand  it,  and  if  it  be  refused,  he  may  refuse 
to  carry  the  goods.  The  owner  of  the  goods  may  tender  him 
the  freight-money  ;  or,  if  the  money  is  not  demanded  by  the 
carrier,  he  may  aver  and  prove  that  he  was  ready  and  willing 
to  pay  the  freight-money  ;  and  this  will  be  equivalent  to  a 
tender,  (m)  Payment  of  the  fare  has  been  inferred  without 
*  proof,  from  the  mere  usage  to  pay ;  {n)  but  we  doubt  whe- 
ther this  could  safely  be  adopted  as  a  general  rule. 

It  is  a  good  excuse  for  the  carrier's  refusal  that  his  carriage 
was  full,  (o)  or  that  the  goods  would  endanger  him,  or  incur 


son  V.  Midland  Railway  Co.  4  Exch. 
367  ;  Pickford  v.  The  Grand  Junction 
Eailway  Co.  8  M.  &  W.  372. 

(m)  Pickford  v.  The  Grand  Junction 
Eailway  Co.  8  M.  &  W.  372.  So  if  the 
carrier  demands  payment  before  he  re- 
ceives the  goods,  and  demands  a  larger 
sum  than  he  is  entitled  to  receive,  the 
owner  of  the  goods  may  pay  liira  such 
sum  as  he  demands,  under  protest,  and 
recover  back  the  excess  in  an  action  for 
money  had  and  received.  And  to  en- 
title him  to  recover  in  this  action,  it  is 
not  necessary  that  he  should  make  a 
tender  to  the  carrier  of  such  sura  as  he 
is  entitled  to  receive.  Parker  v.  The 
Great  Western  Railway  Co.  7  M.  & 
Or.  253,  8  E.  L.  &  E.  426 ;  Edwards 
V.  The  Great  Western  Railway  Co. 
8  E.  L.  &  E.  447;  Crouch  v.  The 
London  &c.  Railway  Co.  2  Car.  &  K. 
789 ;  V.  Pigott,  cited  in  Cart- 
wright  V.  Rowley,  2  Esp.  723 ;  Parker 
V.  The  Bristol  &c.  Railway  Co.  7  E. 
L.  &  E.  528.  The  same  rule  holds 
where  the  carrier,  not  having  received 
his  pay  in  advance,  nor  made  any  spe- 
cial agreement,  refuses  to  redeliver  the 
goods  at  the  end  oF  his  transit  until  he 
is  paid  a  larger  sum  for  the  carriage 
than  he  is  entitled  to  receive.  Thus  in 
Ashmole  v.  Wainwright,  2  Q.  B.  837, 
the  defendants,  common-carriers,  re- 
fused to  redeliver  the  plaintiff's  goods, 
which  they  had  carried  for  him,  except 
on  payment  of  £5  5s.  charges.  lie 
insisted  that  he  was  not  liable  to  pay 
any  tiling  ;  but,  ultimately,  the  defend- 
ants having  said  that  they  would  take 
nothing  less  than  the  whole  sum,  lie 
paid  tlie  whole  to  regain  his  goods,  pro- 
testing tliat  he  was  not  liable  to  pay  any 
thing,  and  tiiat,  if  lie  was  liable,  tlie 
charge  was  exorbitant.  He  had  not 
tendered  or  named  any  smaller  sum. 


Afterwards,  without  having  demanded 
the  return  of  any  surplus,  he  brought 
assumpsit  for  money  had  and  received, 
claiming  by  his  particular  the  whole 
sum,  as  having  been  paid  in  order  to  ob- 
tain possession  of  his  goods,  under  pro- 
test 'that  he  was  not  liable  to  pay  the 
same,  or  any  part  thereof,  or,  if  he  was 
liable  to  pay  some  part,  that  the  sum 
was  exorbitant.  The  jury  having  found 
that  the  defendant  was  entitled  to  charge 
£1  10s.  6c?.,  the  court  held  tliat  the 
plaintiff  was  entitled  to  recover  the  dif- 
ference in  this  form  of  action  ;  and  that 
it  was  not  necessary  to  his  right  of  re- 
covery that  he  should  have  tendered 
any  specific  sum.  But,  semble,  per  Pat- 
teson,  J.,  that  if  a  party,  simply  denying 
that  any  thing  is  due,  tenders  a  sura 
which  is  accepted,  but  which  exceeds 
the  sum  legally  dcmandablc,  he  cannot 
recover  back  the  excess.  This  case 
was  doubted  by  Pollock,  C.  B.,  in  the 
late  case  of  Parker  v.  Tlie  Bristol  &c. 
Railway  Co.  7  E.  L.  &  E.  528,  on  the 
ground  that  the  action  for  money  had 
and  received  must  be  brought  for  a 
definite,  clear,  and  certain  sum,  and 
not  for  some  unknown  sum,  wliich  is 
to  depend  upon  the  verdict  of  the  jury, 
who  are  to  decide  whether  the  defend- 
ant has  received  tlie  money  or  not. 
He  stated,  however,  that  the  doubt  be- 
longed exclusively  to  his  own  mind, 
and  not  to  that  of  the  rest  of  the  court, 
who  were  satisfied  with  the  decision, 
and  altogether  agreed  with  it,  not  mere- 
ly as  a  binding  autiiority,  but  as  agree- 
able to  their  own  opinion  and  judg- 
ment. 

(n)  McGill  V.  Eowand.  3  Barr,  451. 

(o)  Lovett  V.  Ilobbs,  2  Show.  127. 
But  not,  it  seems,  if  he  h.'xs  issued  a 
ticket  for  the  journey  and  lias  put  no 
condition  to  his  liability,     llawcroft  r. 

[671] 


650  *  THE  LAW  OF  CONTRACTS.         [BOOK  III. 

themselves  extraordinary  danger,  (p)  or  are  not  such  as  he 
carries  in  the  known  and  usual  course  of  his  business  ;  (q) 
or  that  he  cannot  at  the  time  and  in  the  way  proposed  re- 
ceive them  without  unreasonable  loss  and  inconvenience. 
And  he  is  not  obliged  to  receive  them  until  he  is  ready  to  set 
forth  on  his  route,  (r) 

A  common-carrier  may  make  what  contract  he  will  as  to 
his  compensation  ;  but  a  tender  of  his  usual,  or  of  a  reason- 
able compensation,  obliges  him  to  carry;  (s)  and  when  he 
carries  without  special  agreement,  this  is  all  the  compen- 
sation he  can  recover.  In  the  absence  of  special  agree- 
ment, he  must  treat  all  persons  alike  ;  and  where  required  by 
statute  to  make  reasonable  and  equal  charges  against  all,  he 
cannot  by  by-laws  or  rules  discriminate  as  to  amounts  or 
modes  of  computation  between  persons  according  to  their 
occupations,  but  must  carry  the  same  amount,  the  same  dis- 
tance, for  the  same  price,  for  all  persons,  (t) 


*  SECTION  VIII. 

WHEN  THE  RESPONSIBILITY  BEGINS. 

As  soon  as  the  goods  are  delivered  and  received,  they  are 
at  the  risk  of  the  carrier.  This  reception  of  them  may  be 
specific  or  general,  and  according  to  the  usage  of  his  busi- 
ness ;  and  it  may  be  actual,  or  constructive.  («)  But  the 
delivery  to  the  carrier  is  not  complete  if  the  goods  are  still 
in  charge  of  the  owner  or  his  representative ;  the  delivery 
must  place  the  goods  in  the  custody  of  the  carrier,  (v)     The 

Great  Northern  Railway  Co.  8  E.  L.  &  (t)  Pickford  v.  Grand  Junction  Eail- 

E.  362.  way  Co.  10   M.  &  W.  399;   Parker  v. 

(p)  Edwards  v.  Shen-att,  1  East,  604 ;  Great  Western  Eailwav  Co.  7  JL  &  Gr. 

Pate  V.  Henry,  5  Stew.  &  Port.  101.  253,   8   E.   L.   &   E.  426;  Edwards  v. 

(q)  Sewall  v.  Allen,   6  Wend.  335;  Great  Western  Eailway  Co.  8  E.  L.  & 

Tunnell  v.   Pettijohn,  2  Harring.  48 ;  E.  447 ;    Crouch   v.    The  London   &c. 

Citizens  Bank  v.  Nantucket  Steamboat  Railway  Co.  2  Car.  &  K.  789. 

Co.  2  Story,  16  ;  Johnson  v.  The  Mid-  (u)  MeiTiam    v.    The    Hartford   &c. 

land  Railway  Co.  4  Exch.  367.  Railroad  Co.  20  Conn.  354. 

(r)  Lane  v.  Cotton,  1  Ld.Eaym.  646,  (v)  Brind   v.   Dale,  8    C.  &  P.  207. 

652,  1  Cora.  100,  105.  It  frequently  becomes  a  difficult  ques- 

(s)  Harris  v.    Packwood,   3    Taunt,  tion  of  fact  whether  goods  have  been 

264.  so  delivered  to  a  carrier  as  to  be  in 

[672] 


CH.   XII.] 


BAILMENT. 


651 


delivery  to  a  ship  is  complete  when  the  master  or  mate,  or 
other  agent  of  the  owner,  receives  them,  either  at  the  ship  or 


his  custody  and  under  his  control,  or 
whether  they  still  continue  under  the 
control  of  the  owner  or  his  servant. 
There  are  several  cases  in  the  books 
which  have  turned  upon  this  question. 
Thus,  in  the  case  of  the  East  India  Co. 
V.  Puilen.  Strange,  690,  an  action  was 
brought  against  the  defendant  as  a 
common-carrier,  on  an  undertaking  to 
carry  for  hire  on  the  River  Thames, 
from  the  ship  to  the  company's  ware- 
houses. It  appeared  in  evidence  that 
the  defendant  was  a  common  lighter- 
man, and  that  it  was  the  usage  of  the 
company,  on  the  unshipping  of  their 
goods,  to  put  an  officer,  who  was  called 
a  guardian,  into  the  lighter,  who,  as 
soon  as  the  lading  was  taken  in,  put  the 
company's  locks  on  the  hatches,  and 
went  with  the  goods  to  see  them  safely 
delivered  at  the  warehouse.  It  appear- 
ed that  such  was  the  course  in  this  case, 
and  part  of  the  goods  were  lost.  Upon 
this  evidence,  Raymond,  C.  J.,  was  of 
opinion  that  "  this  differed  from  the 
common  case,  this  not  being  any  trust 
in  the  defendant,  and  the  goods  were 
not  to  be  considered  as  ever  having 
been  in  his  possession,  but  in  the  pos- 
session of  the  company's  servant,  who 
had  hired  the  lighter  to  use  himself." 
The  plaintiff  was  accordingly  non- suit- 
ed. So  in  the  late  case  of  Tower  v. 
The  Utica  &c.  Railroad  Co.  7  Hill, 
47,  where  an  action  was  brought  to 
charge  a  railroad  company,  as  common- 
carriers,  for  the  loss  of  an  overcoat  be- 
longing to  a  passenger,  and  it  appeared 
that  the  coat  was  not  delivered  to  the 
defendants,  but  that  the  passenger,  ha- 
ving placed  it  on  the  scat  of  the  car  in 
which  lie  sat,  forgot  to  take  it  with  him 
when  he  left,  and  it  was  afterwards 
stolen;  it  was  held  that  the  defendants 
were  not  liable.  And  Ndson,  C.  J., 
said :  —  "  The  overcoat  was  not  deli- 
vered into  the  po-ssession  or  custody  of 
the  defendants,  which  is  essential  to 
their  liability  as  carriers.  Being  an  ar- 
ticle of  wearing  apparel  of  present  use, 
and  in  the  care  and  keeping  of  the 
traveller  himself  for  that  purpose,  the 
defendants  have  a  right  to'  say  that  it 
shall  be  regarded  in  the  sanre  light  as  if 
it  had  been  upon  his  person.  No  car- 
rier, however  discreet  and  vigilant, 
would  think  of  turning  bis  attention  to 


VOL.    I. 


57 


property  of  the  passenger  in  the  situa- 
tion of  the  article  in  question,  or  ima- 
gine that  any  responsibility  attached  to 
him  in  respect  to  it."  On  the  other 
hand,  in  Robinson  v.  Dunmore,  2  B.  & 
P.  416,  it  appeared  in  evidence  that  the 
plaintiff",  who  was  an  upholsterer,  ha- 
ving occasion  to  send  some  furniture 
into  the  country,  agreed  with  the  de- 
fendant to  take  the  same ;  that  the  de- 
fendant brought  his  cart  to  the  plain- 
tiff''s  liouse,  wliere  the  goods  were  load- 
ed in  the  presence  of  the  plaintiff  him- 
self, and  with  the  assistance  of  two  of 
the  plaintift"'s  servants ;  that  the  plain- 
tiff having  observed  that  the  tarpaulin 
which  the  defendant  had  brought  for 
the  purjiose  of  covering  the  cart  was 
too  small,  the  defendant  said,  "  I  have 
plenty  of  sacks,  and  I  will  warrant  the 
goods  shall  go  safe  ;  "  that,  on  account 
of  the  defendant's  being  a  stranger  to 
the  plaintiff,  the  latter  sent  one  of  his 
own  porters  with  the  cart,  who  would 
otherwise  have  gone  by  the  stage  ;  that 
this  porter  in  the  course  of  the  journey 
paid  a  person  for  watching  the  goods 
one  night :  and  that  the  goods  in  the 
course  of  the  journey  were  damaged  by 
rain.  Upon  these  facts,  the  jur}-,  under 
the  direction  of  Lord  EUlon,  before 
whom  the  case  was  tried,  found  a  ver- 
dict for  the  plaintiff.  And  a  rule  nisi 
having  been  obtained  for  setting  this 
verdict  aside  and  entering  a  nonsuit, 
Chamhre.  J.,  said:  —  "This  is  a  very 
clear  case.  The  defendant  is  not  a 
common-carrier  by  trade,  but  has  put 
himself  into  the  situation  of  a  common- 
carrier  by  his  particular  warranty.  As 
to  possession,  that  seems  clearly  proved 
by  the  circumstances  of  the  case ;  the 
defendant  attends  with  his  horse  and 
cart  at  the  p]aintift''s  house,  wiierc  the 
goods  are  delivered  to  him  and  put  into 
the  cart  by  the  plaintift''s  servants. 
This  is  a  complete  possession.  How  is 
this  affected  by  tlie  presence  of  the 
plaintiff's  servant  ?  It  has  been  deter- 
mined that  if  a  man  travel  in  a  stage 
coach,  and  take  his  ])ortmantcau  with 
him,  though  he  lias  his  eye  upon  the  port- 
manteau, yet  the  carrier  is  not  absolved 
from  his  rcsponsihiliiy,  but  will  be  lia- 
ble if  the  portmanteau  be  lost.  In  this 
case  the  plaintiff,  for  greater  caution, 
sends  his  servant  with  the  goods,  who 

[G73] 


652^ 


THE   LAW   OF   CONTRACTS. 


[book  hi. 


on  the  wharf,  or  in  a  warehouse,  if  such  delivery  and  receipt 
be  according  to  the  usage.  And  the  owners  of  the  ship 
forthwith  become  insurers  as  to  all  but  the  cases  excepted  by- 
law, or  by  the  bill  of  lading,  (iv)  Delivery  may  be  made  in 
a  different  way,  or  at  a  different  time  or  place,  from  that 
which  is  usual,  or  notified  to  the  public  ;  such  difference  be- 
ing requested,  or  suggested  by  the  carrier,  or  his  agent,  or 
sanctioned  by  him  by  receiving  the  goods  without  objection, 
and  entering  them  on  the  way-bill,  (x)  The  responsibility 
*of  the  carrier  is  fixed  by  his  acceptance  of  the  goods  without 
objection,  whatever  be  the  manner  of  the  delivery.  Nor  is  it 
necessary  to  complete  the  delivery  that  the  goods  should  be 
entered  on  the  way-bill  or  freight  list,  or  any  written  memo- 
randum made.  (?/) 

The  same  person  may  be  a  common-carrier  and  also  a 
warehouse-man,  or  an  innkeeper,  or  a  wharfinger,  or  a  for- 
warding merchant.  And  goods  may  be  delivered  to  him  and 
lost  under  circumstances  which  would  render  him  liable  if  he 
received  them  as  a  carrier,  but  not  if  he  received  them  in 


pays  for  watching  them,  because  he 
apprehends  danger  of  their  being  stolen. 
So  the  man  who  travels  in  a  stage  has 
some  care  of  his  own  property,  since  it 
is  more  for  his  interest  that  the  pro- 
perty should  not  be  lost  than  that  he 
should  have  an*action  against  the  car- 
rier. This  case  bears  no  resemblance 
to  that  cited  from  Strange,  for  there  the 
decision  proceeded  on  the  usage  of  the 
East  India  Company,  who  never  in- 
trust the  lighterman  with  their  goods, 
but  give  the  whole  charge  of  the  pro- 
perty to  one  of  their  own  officers,  who 
is  called  a  guardian."  The  rule  was 
accordingly  discharged.  See  also  Rich- 
ards V.  The  London  &c.  Railwav,  7  C. 
B.  839 ;  White  v.  Winnisimmet  Co.  7 
Cush.  155, 

(if)  Cobban  v.  Downe,  5  Esp.  41. 
But  a  delivery  to  any  one  of  the  crew  is 
not  sufficient,  they  not  being  authorized 
agents  for  that  purpose.  Leigh  v. 
Smith,  1  C.  &  P.  638.  And,  generally, 
a  delivery  to  a  servant  of  the  carrier 
must  be  to  one  authorized  to  receive 
the  goods.  Therefore,  where  the  plain- 
tiff delivered  a  package  to  the  driver  of 
a  coach,  who  had  no  authority  to  re- 
ceive and  enter  it  on  the  way-bill,  but 

[674] 


consented  to  carry  it  on  to  the  next 
agent  and  have  it  entered  ;  it  was  held  to 
be  no  delivery  to  the  carrier,  Blanch- 
ard  V.  Isaacs,  3  Barb.  388.  The  master 
of  a  vessel  cannot  bind  the  owner  by  a 
bill  of  lading  for  goods  not  actually  put 
on  board.  Grant  v.  Norway  ,2  E.  L.  & 
E.  337  ;  Hubbersty  v.  Ward,  18  E.  L. 
&E.  551. 

(x)  Therefore,  where  a  package  was 
delivered  to  the  agent  of  a  stage-coach 
company,  at  the  post-office,  where  the 
stage  was  standing,  and  not  at  the 
office  of  the  company,  to  be  carried 
from  Boston  to  Hartford,  and  was  by 
the  agent,  when  he  received  it,  entered 
on  the  way-bill,  he  having  previously 
directed  the  person  who  had  the  care  of 
the  package  to  bring  it  to  the  post- 
office  ;  and  the  package  was  lost  before 
leaving  Hartford ;  it  was  held  that  the 
owners  of  the  coach  were  liable  to  the 
owner  of  the  package  for  its  value,  the 
delivery  at  the  post-office  being  with  the 
assent  of  their  agent.  Phillips  v.  Earle, 
8  Pick.  182.  See  also  Pickford  v.  The 
Grand  Junction  Railway  Co.  12  M.  & 
W.  766. 

{y)  Citizens  Bank  y.  Nantucket  Steam- 
boat Co.  2  Story,  16,  35. 


CH.   XII.] 


BAILMENT. 


-652 


another  capacity,  the  loss  not  having  occurred  through  his 
negligence.  And  it  is  sometimes  quite  difficult  to  determine 
in  what  capacity  the  goods  were  received,  (c) 


(2)  See  the  case  of  Roberts  v.  Turn- 
er, 12  Johns.  232,  cited  and  stated  fully 
ante.  p.  618,  n.  {q).  The  point  con- 
sidered in  that  case  came  under  discus- 
sion again  in  the  late  case  of  Teal  v. 
Sears,  9  Barb.  317.  It  was  an  action 
on  the  case  against  the  defendants  as 
common-carriers,  to  recover  for  the  loss 
of  a  case  of  goods.  The  facts  were  as 
follows:  On  the  6th  of  October,  1846, 
the  plaintiffs  shipped,  at  Albany,  three 
cases  of  goods  for  Buffalo,  on  a  canal 
boat.  A  bill  of  lading  was  made  out 
by  the  plaintiffs,  and  forwarded  by  the 
captain  of  the  canal  boat,  with  direc- 
tions to  deliver  the  goods  in  the  bill  as 
addressed,  and  collect  the  charges  for 
transporting  on  the  canal.  The  three 
cases  were  marked  on  the  bill,  "  A.  B. 
Case,  Chicago,  by  vessel,  care  of  Sears 
&  Griffith,  Buffalo."  The  cases  were 
received  by  Sears  &  Griffith,  (the  de- 
fendants) at  Buffalo,  on  the  14th  of  Oc- 
tober, and  they  paid  the  canal  charges, 
indorsing  a  receipt  therefor,  and  a  memo- 
randum of  the  receipt  of  the  goods, 
on  the -bill  of  lading.  The  defendants 
were  at  the  time,  engaged  in  the  for- 
warding and  commission  business  at 
B.  That  was  their  principal  business, 
but  they  were  interested  to  some  extent 
in  a  transporting  line  on  the  canal,  and 
also  in  at  least  one  vessel  carrying 
freight  upon  the  lakes.  On  the  17th 
October,  the  defendants  shipped  the 
goods  on  board  the  schooner  C.,  a  tran- 
sient vessel,  which  ran  between  Buffalo 
and  Chicago,  in  which  they  had  no  in- 
terest. They  took  the  captain's  re- 
ceipt, and  made  a  bill  of  lading  for  the 
goods,  agreeing  with  the  captain  as  to 
the  amount  of  freight  he  should  receive. 
The  vessel  was  a  good  one,  and  her 
captain  in  good  credit.  One  of  the 
cases  of  goods  was  lost  before  arriving 
at  Chicago.  Upon  these  facts  the  court 
held,  1.  That  the  legal  import  of  the 
memorandum  was  not  that  the  goods 
should  be  stored  at  Buffalo,  and  that 
the  defendants  should  act  as  agents  of 
of  the  plaintiffs  in  procuring  a  carrier  of 
them  from  Buffalo  to  Chicago  ;  but  that 
they  were  consigned  to  the  defendants 
at  B.,  with  a  request  or  direction  that 
they  should  be  carried,  by  vessel,  from 
B.   to   Chicago.     2.  That   the  defend- 


ants, receiving  the  goods  with  the  ac- 
companying memorandum,  and  trans- 
porting or  causing  the  same  to  be  trans- 
ported, by  vessel,  to  Chicago,  were  to 
be  regarded  as  impliedly  contracting 
to  carry ;  and  upon  such  a  receipt  the 
risk  of  a  carrier,  and  not  that  of  a  ivare- 
house-inan  or  forwarder,  attached.  Ro- 
berts V.  Turner  having  been  cited  for 
the  defendants,  Wright,  J.,  who  deliver- 
ed the  opinion  of  the  court,  thus  endea- 
vored to  distinguish  the  two  cases :  — 
"  We  are  referred  to  Roberts  v.  Tm-ner, 
12  Johns.  232,  as  controlling  this  case. 
That  case  was  decided  in  1815.  But 
without  referring  to  the  actual  condi- 
tion of  the  busjness  of  the  country  since 
that  decision,  the  case  is  distinguishable 
from  the  present.  In  that  the  whole 
facts  showed  that  Turner  acted  but  as 
a  forwarder  of  the  goods.  He  kept  a 
store  at  Utica,  where  produce  was  left 
by  the  public  to  be  forwarded  by  boats 
or  wagons  to  Albany.  He  had  no  in- 
terest in  the  boats  or  wagons.  The 
plaintiff  knew  when  his  ashes  were  left 
to  be  sent  to  Albany  that  Turner's  only 
business,  in  relation  to  the  carriage  of 
goods,  consisted  in  forwarding  them. 
This  was  also  understood  by  the  public; 
and  that  without  any  concern  in  the 
vessels  by  which  the  goods  were  for- 
warded, or  any  interest  in  the  freight, 
they  were  stored  with  him  merely  for 
the  purpose  of  forwarding  by  others ; 
he  taking  upon  himself  the  expenses  of 
ti'ansportation,  for  which  he  received  a 
compensation  from  the  owners  of  the 
goods.  But  this  was  not  the  position 
of  the  defendants  in  the  present  suit. 
They  were  in  a  measure  engaged  in  the 
carrying  business  and  were  interested 
to  some  extent  in  vessels  on  the  canal 
and  lakes.  The}-  kept  a  public  otBce 
fpr  the  transaction  of  their  business,  at 
a  place  of  transshipment,  receiving  and 
carrying  all  goods  that  might  be  direct- 
ed to  their  care,  in  their  own  vessels 
when  convenient,  and  in  such  other 
vessels  as  they  could  employ  on  tenns 
most  advantageous  to  thcmscivcs.  They 
received  the  goods  in  question  directed 
to  them,  which  were  destined  west  on 
the  lakes.  They  employed  a  vessel  to 
carry  them  forward,  making  out  a  new 
freight  bill,  and  returning  the  old  one, 
[675] 


653-654*  THE    LAW   OP    CONTRACTS.  [BOOK    III. 

The  princijjle  which  governs  these  cases  may  be  stated 
thus.  If  the  transportation  be  the  chief  thing,  and  the  depo- 
sit of  the  goods  on  a  wharf  or  in  a  building  be  for  a  short 
time  only,  and  merely  incidental  to  the  transportation,  and 
the  owner  of  the  goods  relinquishes  them  entirely  when  they 
are  so  deposited,  then  they  are  so  delivered  to  the  common- 
carrier  in  that  capacity,  and  he  is  liable  for  them  according- 
ly, (a)  Thus,  most  carriers  have  a  receiving  office,  or  depot, 
or  station.  However  such  a  place  be  called,  goods  once  de- 
livered and  received  there  are  as  much  at  the  risk  of  the  car- 
rier as  if  they  were  packed  in  the  wagon  or  car,  and  in  actual 
motion,  (b)  But  if  they  are  deposited  even  in  such  re- 
ceiving office,  with  orders  not  to  transport  them,  but  to  let 
them  lie  until  further  instructions  shall  be  given  by  the 
*  owner,  the  carrier'has  not  received  them /or  carriage ;  or,  in 
other  words,  he  has  not  received  them  as  a  carrier,  but  only 
as  a  depositary,  (c)  As  soon  as  final  instructions  to  trans- 
port the  goods  were  received  by  the  carrier,  perhaps  his  lia- 
bility in  that  character  would  begin.  But  not  if  the  goods 
had  been  previously  deposited  there,  for  a  distinct  time,  and 
an  independent  purpose.  In  such  case  the  order  to  carry 
would  have  no  farther  operation  than  an  order  by  an  owner 
to  carry  goods  in  the  owner's  possession.  It  attaches  no  lia- 
bility until  the  order  is  executed,  or  begins  to  be  executed. 
So,  if  goods  are  deposited  with  one  who  is  a  carrier,  but  dis- 
tinctly for  the  purpose  of  warehousing  them,  the  depositary 
is  answerable  only  for  negligence ;  and  if  afterwards  he  is 

and  for  themselves  taking  the  captain's  than  himself,  in  good  credit  and  in  safe 

receipt  for  the  goods.     Persons  osten-  vessels,  they  only  assume   the   liability 

sibly  engaged   as   forwarders   have,  in  of  depositaries  for  hire.    But  if.  calling 

this  State,  become  numerous,  and  their  themselves  forwarders,  they  so  act  and 

business     complicated    and    extensive,  conduct  their   business   as   to   lead  the 

The  rigid    rules    of   the   common  law  public   to  regard  them  as  carriers,  and 

make  the  carrier  assume  the  liability  of  employ  them  as  such,  without  intima- 

an  insurer  of  property,  whilst  the  ware-  tion  of  their  true  character,  tlie  liabili- 

house-man   and  forwarder  are  but  an-  ties  of  a  carrier  attach  to  them." 

swerable  as  bailees,  for   ordinary  neg-  (a)  Having  v.  Todd,  I  Stark.  72. 

lect.     The   law    distinctly   defines    the  (b)  Camden  «&  Amboy  Railroad  &c. 

business   of  each,   and  their   liabilities.  Co.  v-  Belknap,  21  Wend.  354  ;  Woods 

Whilst    the    warehouse-man    confines  v.  Devin,  13  111.  746  ;  Moses  v.  Boston 

himself  to   the   receipt  and  storage  of  &  Maine  R.  R.  4  Foster,  71. 

goods,  for  a  compensation,  and  a  for-  (c)  Piatt   v.   Hibbard,   7  Cow.   497 ; 

warder  to  the  receipt  of  goods,  and  the  Moses  v.  Boston  &  Maine  R.  R.  4  Fos- 

forwarding  of  them  by  a  carrier  other  ter,  71. 

[676] 


CH.   XII.] 


BAILMENT. 


-654 


ordered  to  carry,  and  undertakes  to  carry  the  same  goods, 
his  peculiar  liability  as  carrier  does  not  begin  until  he  begins 
to  carry,  or  moves  the  goods,  or  prepares  them  for  carriage, 
taking  them  as  it  were  anew  into  his  possession  for  this  spe- 
cific purpose. 

The  delivery  to  a  carrier  must  be  known  to  the  carrier,  in 
order  to  create  a  responsibility  on  his  part,  (d)  If  goods  are  left 
in  his  depot  or  receiving  office,  with  no  notice  to  him,  and  no 
knowledge  by  him,  he  is  not  then,  in  general,  bound  to  any 
care  or  charge  of  them.  But  usage,  or  terms  made  public  by 
advertisement,  might  raise  such  an  obligation,  (e)     As  if  he 


{d)  Selway  v.  Holloway,  1  Ltl.  Raym. 
46;  Buckman  v.  Levi,  3  Campb.  414; 
Packard  v.  Getman,  6  Cow.  757. 

(e)  Mechanics  &  Traders  Bank  v. 
Gordon,  5  Louis.  Ann.  604.  The  late 
case  of  Merriam  v.  The  Hartford  &c. 
Railroad  Co.  20  Conn.  354,  is  very 
strong  to  this  point.  In  that  case,  cer- 
tain goods,  designed  to  be  transported 
by  the  defendants,  as  common-carriers, 
from  New  York  to  Meriden  in  Con- 
necticut, were  delivered  in  New  York, 
in  the  usual  manner,  on  the  defendants' 
private  dock,  which  was  in  their  ex- 
clusive use  for  the  purpose  of  receiving 
property  to  be  transported  by  them.  It 
was  held  that  such  delivery  was  a  good 
delivery  to  the  defendants  to  render 
them  liable  for  the  loss  of  the  goods, 
although  neither  they  nor  their  agent 
were  otherwise  notified  of  such  delivery. 
And  Storrs,  J.,  said  :  —  "A  contract 
with  a  common-carrier  for  the  trans- 
portation of  property,  being  one  of 
bailment,  it  is  necessary,  in  order  to 
charge  him  for  its  loss,  that  it  be  deli- 
vered to  and  accepted  by  him  for  that 
purpose.  But  such  acceptance  may 
be  either  actual  or  constructive.  The 
general  rule  is,  that  it  must  be  deli- 
vered into  the  hands  of  tlie  carrier  him- 
self, or  of  his  servant,  or  some  person 
authorized  by  him  to  receive  it ;  and 
if  it  is  merely  deposited  in  the  yard 
of  an  inn,  or  upon  a  wharf  to  which  the 
carrier  resorts,  or  is  placed  in  the  car- 
rier's cart,  vessel,  or  carriage,  without 
the  knowledge  and  acceptance  of  the 
carrier,  his  servants  or  agents,  there 
would  be  no  bailment  or  delivery  of  the 
property,  and  he,  consequently,  could 
not   be  made  responsible  for  its  loss. 

57* 


Addison  on  Cont.  809.  But  this  rule 
is  subject  to  any  conventional  arrange- 
ment between  the  parties  in  regard  to 
the  mode  of  delivery,  and  prevails  only 
where  there  is  no  such  arrangement. 
It  is  competent  for  them  to  make  such 
stipulations  on  the  subject  as  they  see 
fit ;  and  when  made,  they,  and  not  the 
general  law,  are  to  govern.  If,  there- 
fore, they  agree  that  the  property  may 
be  deposited  for  transportation  at  any 
particular  place,  and  without  any  ex- 
press notice  to  the  carrier,  such  deposit 
merely  would  be  a  sufficient  delivery. 
So  if,  in  this  case,  the  defendants  had 
not  agreed  to  dispense  with  express 
notice  of  the  delivery  of  the  property 
on  their  dock,  actual  notice  thereof  to 
them  would  have  been  necessary ;  but 
if  there  was  such  an  agreement,  the  de- 
posit of  it  there,  merely,  would  amount 
to  constructive  notice  to  the  defendants, 
and  constitute  an  acceptance  of  it  by 
them.  And  we  have  no  doubt  that  the 
proof  by  the  plaintiff  of  a  constant  and 
habitual  practice  and  usage  of  the  de- 
fendants to  receive  property  at  their 
dock  for  transportation,  in  the  manner 
in  which  it  was  deposited  by  the  plain- 
tiff, and  without  any  special  notice  of 
such  deposit,  was  competent,  and  in 
this  case  sufficient  to  show  a  public 
offer,  by  the  defendants,  to  receive  pro- 
perty for  that  purpose,  in  that  mode  ; 
and  that  the  delivery  of  it  there  accord- 
ingly, by  the  plaintiff,  in  pursuance  of 
such  offer,  should  be  deemed  a  compli- 
ance with  it  on  his  part;  and  so  to  con- 
stitute an  agreement  between  the  par- 
tics,  by  the  terms  of  whicli  the  projierty, 
if  so  deposited,  should  bo  considered  as 
delivered    to   the  defendants,   witliout 

[677] 


655-656' 


THE   LAW   OF   CONTRACTS. 


[book  III. 


had  advertised  that  parcels  properly  directed  might  be  put 
into  his  box,  that  adequate  provisions  had  been  made  for 
their  safety,  and  that  he  should  hold  himself  responsible  for 
them,  he  would  in  such  case  undoubtedly  be  held  to  this 
responsibility.  And  the  knowledge  of  his  authorized  agent 
is  his  knowledge.  (/)  But  not  every  one  employed  by  him 
is  his  agent  in  such  wise  as  to  charge  him  with  this  respon- 
sibility, (o-)  Drivers  of  stage-coaches,  or  conductors  of  cars, 
may  be  in  the  habit  of  carrying  goods  generally,  in  parcels 
of  some  particular  kind,  on  their  own  account,  receiving 
themselves  the  pay,  and  not  accounting  for  it  to  their  em- 
*ployers.  One  who  delivers  goods  to  such  a  person  for  car- 
riage, knowing  that  he  carries  them  only  in  this  way,  and 
that  no  part  of  the  compensation  he  receives  goes  to  his 
employer,  cannot  hold  that  employer  liable  for  loss  of  the 
goods,  (h)  But  the  employing  carrier  cannot  defend  himself 
by  showing  that  his  servant  carried  the  goods  on  his  sepa- 
rate account,  and  for  his  separate  gain,  provided  the  owner 
did  not  know  the  state  of  the  case,  but  believed  that  the 


any  further  notice.  Such  practice  and 
usage  was  tantamount  to  an  open  de- 
claration, a  public  advertisement,  by 
the  defendants,  that  such  a  delivery 
should,  of  itself,  be  deemed  an  accept- 
ance of  it  by  them,  for  the  purpose  of 
transportion ;  and  to  permit  them  to 
setup  against  those,  who  had  been  there- 
by induced  to  omit  it,  the  formality  of 
an  express  notice,  which  had  thus  been 
waived,  would  be  sanctioning  the  great- 
est injustice  and  the  most  palpable 
fraud.  The  present  case  is  precisely 
analogous  to  that  of  the  deposit  of  a 
letter  for  transportation  in  the  letter- 
box of  a  post-otficc,  or  foreign  packet 
vessel,  and  to  that  of  a  deposit  of  arti- 
cles for  carriage  in  the  public  box  pro- 
vided for  that  purpose,  in  one  of  our 
express  offices  ;  where  it  would  surely 
not  be  claimed  that  such  a  delivery 
would  not  be  complete,  without  actual 
notice  thereof  to  the  head  of  these  esta- 
blishments or  their  ajjcnts." 

(/■)  Burrell  v.  North,  2  Car.  &  K. 
680  ;  Davey  v.  Mason,  1  Car.  &  M.  45 ; 
D'Aiijou  t\"Deagle,  3  H.  &  Johns.  206. 

([/)  But  the  agent  must  have  an  au- 
thority for  this  purpose,  or  be  held  out 
as  having  it.    Therefore,  where  a  com- 

[678] 


mon-carrier  sent  his  wagon  to  Nash- 
ville with  a  load  of  cotton,  and  the  dri- 
ver was  a  young  negro  who  had  never 
been  allowed  to  make  contracts  for 
hauling,  and  who  had  never  before 
been  intrusted  with  the  wagon  and 
team  alone,  and  who  was  particularly 
instructed  to  bring  home  a  load  of  salt, 
and  not  to  receive  goods  of  any  kind 
for  carriage,  notwithstanding  which  he 
did  receive  goods  for  carriage,  and  the 
goods  were  damaged ;  it  was  held  that 
the  owner  of  the  team  was  not  liable. 
Jenkins  v.  Picket,  9  Yerg.  480. 

(A)  Thus,  where  a  ship  is  not  put  up 
to  freight,  but  employed  by  the  owner 
on  his  own  account ;  and  the  master 
receives  goods  of  another  person  on 
board  as  part  of  his  privilege,  taking  to 
himself  the  freight  and  commissions, 
the  owner  of  the  ship  is  not  liable  in 
case  of  embezzlement,  or  for  the  con- 
duct of  the  master  in  relation  to  such 
goods.  King  v.  Lenox,  19  Johns. 
235.  See  also  Butler  r.  Basing,  2  C. 
&  P.  613;  Reynolds  r.  Toppan,  15 
Mass.  370  ;  Citizens  Bank  v.  Nantucket 
Steamboat  Co.  2  Storv,  16  ;  Allen  v. 
Sewall,  2  Wend.  327,  6' Id.  335  ;  Wal- 
ter V.  Brewer,  11  Mass.  99. 


CH.   XII.] 


BAILMENT. 


*657 


employer  was  the  carrier,  and  the  servant  his  receiver  of 
goods  for  carriage,  and  was  justified  by  the  main  facts  of  the 
case  in  so  believing,  {i) 

*  A  ship  may  be  a  common-carrier,  whether  in  the  hands  of 
her  owner,  or  chartered  by  him  to  another.  But  she  may  be 
chartered  in  two  ways.  If  the  hirer  provides  and  pays  the 
officers  and  crew,  in  this  case  the  owner  is  not  more  liable 
for  their  acts  than  if  he  had  sold  the  ship.  (J)  If  the  owner 
agrees  to  man  the  ship,  and  then  the  hirer  hires  ship,  officers, 


(0  Tims,  where  the  owners  of  a  stage- 
coach employed  a  driver,  under  a  con- 
tract that  he  should  receive  a  certain 
sum  of  money  per  month,  and  the  com- 
pensation which  should  be  paid  for  the 
carriage  of  small  parcels,  it  was  held 
that  the  owners  would  be  answerable 
for  the  negligence  of  the  driver  in  not 
delivering  a  parcel  of  that  description, 
intrusted  to  him  to  carr}',  unless  this 
arrangement  was  known  to  the  proprie- 
tor of  the  goods,  so  that  he  contracted 
M'ith  the  driver  as  principal.  Bean  v. 
Sturtevant,  8  N.  H.  146.  See  also  Al- 
len V.  Sewall,  2  Wend.  327,  6  Id.  .335 ; 
Hosea  v.  McCrory,  12  Ala.  349  ;  Chou- 
teau u.  Steamboat,  16  IMissouri,  216.  Sec 
also  the  late  case  of  Farmers  &  Mecha- 
nics Bank  v.  Champlain  Transportation 
Co.  23  Verm.  186,  in  which  these  points 
are  thoroughly  considered.  See  the 
facts  of  the  case  stated  post,  p.  661,  n. 
(u.)  One  of  the  points  made  was  whe- 
ther the  defendants  were  to  be  held  as 
common-carriers  of  the  bank  bills  in 
question.  Upon  this  point,  Rcdjield,  J., 
said  : — "  It  seems  to  us  that  when  a  natu- 
ral person,  or  a  corporation,  whose  pow- 
ers are  altogether  unrestricted,  erect  a 
steamboat,  appoint  a  captain,  and  other 
agents,  to  take  the  entire  control  of 
their  boat,  and  thus  enter  upon  the  car- 
rying business,  from  port  to  port,  they 
do  constitute  the  captain  their  general 
agent,  to  carry  all  such  commodities  as 
he  may  choose  to  contract  to  carry  with- 
in the  scope  of  the  powers  of  the  own- 
ers of  the  boat.  If  this  were  not  so,  it 
would  form  a  wonderful  exception  to 
the  general  law  of  agency,  and  one  in 
which  the  public  would  not  very  readily 
acquiesce.  There  is  hardly  any  busi- 
ness in  tlie  country,  where  it  is  so  im- 
portant to  maintain  the  authority  of 
agents,  as  in  this  matter  of  carrying,  by 
these  invisible  corporations,  who  have 


no  local  habitation,  and  no  existence, 
or  power  of  action,  except  through 
these  same  agents,  by  whom  almost  the 
entire  carrying  business  of  the  country 
is  now  conducted.  If,  then,  the  cap- 
tains of  these  boats  are  to  be  regarded 
as  the  general  agents  of  the  owners, — 
and  we  hardly  conceive  how  it  can  be 
regarded  otherwise,  —  whatever  com- 
modities, within  the  limits  of  the  pow- 
ers of  the  owners,  the  captains,  as  their 
general  agents,  assume  to  carry  for 
hire,  the  liability  of  the  owners  as  car- 
riers is  thereby  fixed,  and  they  will  be 
held  responsible  for  all  losses,  unless, 
from  the  course  of  business  of  these 
boats,  the  plaintiffs  did  know,  or  upon 
reasonable  inquiry  might  have  learned, 
that  the  captains. were  intrusted  with 
no  such  authority.  Prima  facie  the 
owners  are  liable  for  all  contracts  for 
carrying,  made  by  the  captains  or  other 
general  agents  for  that  purpose,  within 
the  powers  of  the  owners  themselves, 
and  the  onus  rests  upon  them  to  show 
that  the  plaintitTs  had  made  a  private 
contract  with  the  captain,  which  it  was 
understood  should  be  kept  from  the 
knowledge  of  the  defendants,  or  else 
had  given  credit  exclusively  to  the  cap- 
tain. But  it  does  not  appear  to  us  that 
the  mere  foct  that  the  captain  was,  by 
the  company,  permitted  to  take  the 
perquisites  of  carrying  these  parcels, 
will  be  sufficient  to  exonerate  the  com- 
pany from  liability.  Their  suffering 
him  to  continue  to  carry  bank-bills 
ought,  wc  think,  to  be  regarded  as  fix- 
ing their  responsibilit}^,  and  allowing 
the  captain  to  take  the  perquisites,  as 
an  arrangement  among  themselves." 

(J)  James  v.  Jones,  3  Esp.  27  ;  Val- 
Icjo  V.  Wheeler,  Cowp.  143:  Frazcr  u. 
Marsh,  13  East,  238  ;  Reynolds  v.  Top- 
pan,  15  Mass.  370. 

[679] 


658*  THE  LAW  OF   CONTRACTS.  [bOOK  III. 

and  crew,  of  the  owner,  the  owner  alone  is  in  general  respon- 
sible for  the  acts  of  the  officers  and  men  in  reference  to  the 
goods,  where  he  has  the  actual  possession  and  control  of  the 
ship  for  that  voyage,  (k)  The  owner  of  the  ship  is  certainly 
liable  for  the  acts  of  those  whom  he  provides  and  pays, 
where  the  goods  were  laden  on  board  on  his  credit,  trusting 
to  him  as  the  owner  of  the  ship,  he  knowing  this  trust,  and 
by  his  words  or  conduct  authorizing  it,  and  so  accepting  the 
responsibility.  So  an  owner  of  a  ferry,  who  has  leased  it, 
and  placed  the  lessee  in  possession,  is  not  liable  for  loss  of 
goods  in  crossing  the  ferry.  (Z) 


SECTION  IX. 

WHEN  THE  RESPONSIBILITY  ENDS. 

As  the  liability  of  the  carrier  begins  with  the  delivery  of 
the  goods  to  him,  so  it  continues  until  the  delivery  of  the 
goods  by  him.  For  he  is  bound  not  only  to  carry  them  to 
their  destined  place,  but  to  deliver  them  there  to  the  bailor, 
or  as  the  bailor  may  direct,  (m)  And  this  he  must  do  within 
*what  shall  be  a  reasonable  time,  judging  from  all  the  cir- 
cumstances of  the  case ;  (w)  and  within  the  proper  hours 
of  business,  when  the  goods  can  be  received  and  properly 
stored,  (o) 

(t)    Parish    v.    Crawford,    Strange,  Philadelphia  to  Columbia,  undertook  to 

1251  ;  Emery  v.  Hersey,  4  Greenl.  407  ;  carry  certain  boxes  of  goods  belonging 

Mclntire  v.  Bowne,  1  Johns.  229.  to  the  plaintiffs  from  Philadelphia  to 

(/)  Ladd  V.  Chotard,  Minor,  366.  Columbia.     The  cars  arrived  at  the  lat- 

{m)  Golden  v.  Manning,  3  Wils.  429,  ter  place  about  sunset  on  a  Saturday 
2  Wm.  Bl.  916;  Hyde  v.  Trent  and  evening,  and  by  the  direction  of  the 
Mersey  Navigation  Co.  5  T.  R.  SS9 ;  plaintiffs  were  placed  on  a  sideling. 
Wardell  v.  Mourillyan,  2  Esp.  693 ;  The  plaintiffs  declined  receiving  the 
Storr  V.  Crowley,  McCl.  &  Y.  129  ;  Gib-  goods  that  evening,  on  the  ground  that 
son  V.  Culver,  1 7  Wend.  305  ;  Fisk  v.  it  was  too  late ;  whereupon  the  agent  of 
Newton,  1  Denio.  45  ;  Ostrander  v.  the  defendants  left  the  cars  on  the  side- 
Brown,  1 5  Johns.  39  ;  Eagle  v.  White,  ling,  taking  with  him  the  keys  of  the 
6  Whart.  505  ;  McHenry  v.  Eailway  padlocks  with  which  the  cars  "were  fas- 
Co.  4  Harring.  44S.  tened,  and  promised  to  return  on  Mon- 

(n)  Hand  v.  Baynes,  4  Whart.  204 ;  day   morning.     The  cars   remained  in 

Favor  r.  Philbrick,  5  New  Hamp.  358;  this  situation  until   ^Monday  morning, 

Wallace  v.  Vigus,  4  Blackf  260.  when  they  were  opened  by  the  plaintiffs 

(o)  Eagle  V.  White,  6  Whart.  505.  by  means  of  a  key  which  fitted  the  lock ; 

In  this  case  the  defendants,  who  were  and  on  examination  it  M'as  discovered 

common-carriers  on  the  railroad  from  that  one  of  the  boxes  had  been  opened, 

[680] 


CH.   XII.] 


BAILMENT. 


659 


But  if  there  be  delay  through  an  accident  or  misfortune, 
and  the  carrier  afterwards  delivers  the  goods  as  soon  as  may 
be,  he  is  not  re.sponsible  for  the  effect  of  the  delay,  although 
it  was  not  occasioned  by  "  the  act  of  God  or  the  public  ene- 


and  the  contents  carried  away ;  held 
that  tlie  defendants  were  liable  to  the 
plaintiffs  for  the  value  of  the  goods  lost. 
Huston,  J.,  dissented. —  So  in  Merwin 
V.  Butler,  17  Conn.  138,  where  the  de- 
fendant, who  was  a  common-carrier, 
received  from  the  plaintiff  a  package  of 
money,  to  convey  it  from  S.  to  P.,  and 
deliver  it  at  the  banlc  in  P. ;  it  appeared 
that  when  tlie  defendant  arrived  at  P. 
the  bank  was  shut ;  that  he  went  twice 
to  the  house  of  the  cashier,  and  not 
finding  him  at  home,  brought  the  mo- 
ney back,  and  offered  it  to  the  plaintiff, 
who  declined  to  accept  it ;  and  that  the 
defendant  then  refused  to  be  further 
responsible  for  any  loss  or  accident ;  it 
was  held  that,  in  the  absence  of  any  spe- 
cial contract,  (none  being  proved  in 
this  case,)  these  facts  did  not  constitute 
a  legal  excuse  to  the  defendant  for  tlie 
non-performance  of  his  undertaking. 
And  Hinman,  J.,  said:  —  "That  there 
may  be  circumstances  which  would  ex- 
cuse a  carrier  from  the  delivery  of  a 
package  is  doubtless  true ,  but  there  is 
nothing  stated  in  this  motion  that  ought 
to  have  that  effect.  That  tlie  bank  was 
shut,  when  the  carrier  went  there,  can 
amount  to  nothing,  unless  it  appeared 
further  tiiat  he  went  there  at  a  proper 
time,  during  the  ordinary  business 
hours  ;  and  even  then  we  could  not  say, 
as  matter  of  law,  that  this  would  be  a 
legal  excuse.  It  would  depend  upon 
the  degree  of  diligence  which  the  car- 
rier used,  to  let  the  officers  of  the  bank 
know  that  he  had  a  package  to  deliver 
there.  No  question  of  this  sort  was 
raised,  on  the  trial  below,  nor  does  it 
appear  that  there  was  any  foundation 
on  which  it  could  have  been."  See 
also  Hill  I'.  Humphreys,  5  W.  &  S.  123 ; 
Young  V.  Smith,  3  Dana,  91  :  Storr  v. 
Crowley,  McCl.  &  Y.  129.  The  ques- 
tion, what  constitutes  a  sufficient  deli- 
very, is  well  illustrated  by  the  case  of 
De'JMott  ct  al.  v.  Laraway,  U  Wend. 
225.  The  defendant  in  that  case  was 
the  owner  and  master  of  a  canal-boat, 
and  received  on  board  his  boat  at  Troy 
a  hogshead  of  molasses  and  other  goods 
belonging  to  the  plaintiffs,  to  be  trans- 
ported to  Kidder's  ferry,  being  a  land- 


ing-place nearest  to  Farmersville,  where 
the  plaintiffs  transacted  business.  All 
the  goods  were  safely  transported  and 
delivered  to  the  plaintiffs  except  the 
hogshead  of  molasses.  The  boat  ar- 
rived at  Kidder's  ferry,  and,  in  the 
attempt  to  hoist  the  hogshead  of  mo- 
lasses into  a  warehouse,  the  usual  place 
for  the  delivery  of  goods  for  Farmers- 
ville, the  fall  (part  of  the  machinery  for 
hoisting  attached  to  the  warehouse) 
broke,  and  the  hogshead  fell  back  into 
the  boat,  was  stove,  and  most  of  the 
molasses  lost.  At  the  time  of  the  acci- 
dent the  hogshead  was  clear  of  the  boat, 
and  almost  up  to  the  sill  of  the  door  of 
the  warehouse.  One  of  the  plaintiffs 
was  present,  and  had  wagons  there  in 
which  some  of  the  goods  were  loaded. 
It  was  held  that  the  defendant  was  lia- 
ble for  the  loss.  Sutherland,  J.,  said  : — 
"  Laraway  was  a  common-carrier  upon 
the  canal,  and  as  such  undertook  to 
transport  the  defendant's  goods  from 
Troy  to  Kidder's  ferry.  Tliis  necessa- 
rily included  the  duty  of  delivering  the 
goods  there  in  safety.  They  were  all 
thus  delivered  except  a  hogshead  of 
molasses,  which  was  stove  in  the  act  of 
being  unladen ;  as  they  were  hoisting  it 
from  the  boat  with  a  tackle  attached  to 
a  storehouse  upon  the  bank  of  the  ca- 
nal, the  rope  liroke,  and  the  hogshead 
fell  back  into  the  boat,  and  most  of  the 
molasses  wa*  lost.  Although  one  of 
the  plaintiffs  was  present,  there  is  no 
pretence  that  he  had  accepted  the  mo- 
lasses as  delivered  previously  to  the 
accident,  or  that  he  had  any  thing 
to  do  with  the  delivery.  The  delivery 
was  not  complete  when  the  accident 
occurred,  and  the  goods  were  still  at  the 
risk  of  the  carrier.  It  is  a  matter  of  no 
importance  that  the  maciiincry  employ- 
ed in  unlading  the  boat  was  attached  to 
and  belonged  to  a  store  on  the  bank  of 
the  canal,  and  not  to  the  carriers  boat. 
It  was  pro  hac  vice  his  tackle,  and 
he  was  responsible  for  its  sufficiency. 
When  the  responsibility  of  a  common- 
carrier  has  begun,  it  continues  until 
there  has  been  a  due  delivery  by  Iiim." 
See  also  Graff  v.  Bloomer,  9  Barr, 
114. 

[681] 


660 


THE   LAW   OF   CONTRACTS. 


[book  in. 


my,"  and  might  possibly  have  been  prevented ;  for  as  to  the 
time  of  the  delivery  he  is  not  bound  to  more  than  diligence ; 
nor  responsible  unless  for  the  want  of  due  diligence  ;  his  lia- 
bility as  to  the  time  of  delivery  being  quite  distinct  .from 
his  liability  for  the  delivery  itself,  (p)  It  seems,  however, 
that  if  he  has  made  an  express  agreement  to  deliver  by  a 
specified  time,  delay  caused  by  unavoidable  accident  will  be 
no  excuse,  (pp) 

If  the  consignee  refuse  to  receive  the  goods,  or  cannot 
receive  them,  or  is  dead,  or  absent,  this  will  excuse  delay  in 
delivery,  but  not  absolve  the  carrier  from  all  duty  or  respon- 
sibility ;  for  he  is  still  bound  to  make  all  reasonable  efforts 
to  place  them  in  the  hands  of  the  consignee,  and  when  these 
are  ineffectual,  to  take  care  of  the  goods  for  the  owner,  by 
holding  them  himself,  or  lodging  them  with  suitable  persons 
for  him  ;  and  such  persons  then  become  bailees  of  the  own- 
ers of  the  goods.  (<^) 

*  But  the  question  of  reasonableness  of  time  disappears 


(p)  Parsons  v.  Hardy,  14  "Wend.  21 5  ; 
Dows  V.  Cobb,  12  Barb.  310,  320; 
Boyle  V.  McLaughlin,  4  H.  &  Johns. 
291;  Hadley  v.  Clarke,  8  T.  K.  259;' 
Lowe  V.  Moss,  12  111.  477.  See  Harrell 
V.  Owens,  1  Dev.  &  Bat.  273,  contra.  — 
But  if  the  carrier  is  prevented  by  any 
cause  from  delivering  goods  in  due 
time,  his  liability  to  deliver  them  within 
a  reasonable  time,  after  the  cause  of  de- 
tention is  removed,  still  continues.  Id. 
Therefore,  where  the  defendants  con- 
tracted to  carry  the  plaintiff's  goods 
from  Liverpool  to  Leghorn,  and  on  the 
vessel's  arriving  at  Falmouth,  in  the 
course  of  her  voyage,  an  embargo  was 
laid  on  her,  "until  the  further  order  of 
Council ; "  it  was  held  that  such  embar- 
go only  suspended,  but  did  not  dis- 
solve, the  contract  between  the  parties ; 
and  that  even  after  two  years,  when  the 
embargo  M'as  taken  off,  the  defendants 
were  answerable  to  the  plaintiff  in 
damages  for  the  non-performance  of 
their  contract.  Hadley  i'.  Clarke,  8  T. 
E. 259. 

(pp)  Hai'mony  i'.  Bingham,  1  Duer, 
209. 

(q)  Ostrander  v.  Brown,  15  Johns. 
39;  Fisk  v.  Newton,  1  Denio.  45.  In 
this  last  case  the  consignee  of  certain 
kegs  of  butter,  sent  from  Albany  to 

[682] 


New  York  by  a  freight  bai'ge,  was  a 
clerk,  having  no  place  of  business  of 
his  own,  and  whose  name  was  not  iu 
the  city  directory,  and  who  was  not 
known  to  the  carrier,  and  after  reason- 
able inquiries  by  the  carrier's  agent 
could  not  be  found.  It  was  held  that 
tlie  carrier  discharged  himself  from  fur- 
ther responsibility,  by  depositing  the 
property  with  a  storehouse  keeper,  then 
in  good  credit,  for  the  owner,  and  taking 
his  receipt  for  the  same,  according  to 
the  usual  course  of  business  in  that 
trade,  though  the  butter  was  subse- 
quently sold  by  the  storehouse  keeper, 
and  the  pi-oceeds  lost  to  the  owner  by 
his  failure.  And  Jeivett,  J.,  said  :  — 
"  When  goods  are  safely  conveyed  to 
the  place  of  destination,  and  the  con- 
signee is  dead,  absent,  or  refuses  to  re- 
ceive, or  is  not  known,  and  cannot,  after 
due  efforts  are  made,  be  found,  tlie  car- 
rier may  discharge  himself  from  further 
responsibility  by  placing  the  goods  in 
store  with  some  responsible  third  person 
in  that  business,  at  the  place  of  delivery, 
for  and  on  account  of  the  owner.  When 
so  delivered,  the  storehouse  keeper  be- 
comes the  bailee  and  agent  of  the  owner 
in  respect  to  such  goods."  See  also 
Stone  V.  Waitt,  31  Maine.  409 ;  Hemp- 
hill V.  Chenie,  6  W.  &  S.  62. 


CH.   XII.]  BAILMENT.  *  661 

when  the  parties  have  made  the  time  certain  by  their  special 
agreement.  Then  it  must  be  precisely  adhered  to.  Any 
delay  is  a  failure,  and  a  breach  of  contract,  (r)  And  where 
there  is  a  custom  which  would  wholly  excuse  the  carrier  from 
delivering  the  goods,  still,  if  he  make  an  express  promise  to 
deliver,  he  is  bound  by  this  promise,  and  the  custom  becomes 
inoperative. 

In  general,  the  delivery  of  the  goods  must  be  to  the  owner 
or  consignee  himself,  or  to  his  agent,  [s)  or  they  must  be 
carried  to  his  residence,  or  they  may  be  taken  to  his  place 
of  business,  where  from  the  nature  of  the  parcels  this  is 
the  more  appropriate  place  for  their  delivery.  Nor  is  it  suffi- 
cient that  they  are  left  at  the  public  office  of  the  carrier,  un- 
less there  be  express  permission  for  this,  or  an  usage  so 
established  and  well  known  as  to  be  equivalent  to  such  per- 
mission. (/) 

*  Usage,  so  long  established,  so  uniform,  and  so  well  known 
that  it  must  be  supposed  that  the  parties  to  a  contract  knew 
it,  and  referred  to  it,  becomes  as  it  were  a  part  of  the  con- 
tract, and  may  modify  in  an  important  manner  the  rights 
and  duties  of  the  parties.  And  in  determining  what  is  a 
sufficient  delivery  of  goods  by  a  carrier,  usage  has  frequently 
great  influence,  (u)     In  general,  as  we  have  said,  the  delivery 

{?•)  Hand  v.  Baynes,  4  Whart.  204,  ported  the  goods  is  not  answeraljle  for 

214  ;    Paradine    v.    Jane,   Aleyn,   27  ;  the  want  of  care  or  skill  in  the  persons 

Brecknock   Co.  v.  Pritchard,  6   T.  R.  employed  in  so   removing    the  goods 

750.    But  see  Dows  v.  Cobb,  12  Barb,  from    the    car,   nor    for    the  want    of 

310,  321.  strength  in  the  machinery  used  for  tlic 

(s)  See  cases  cited  ante,  p.  658,  n.  removal  of  them,  and  cannot  be  charged 
(m.)  In  Lewis  v.  The  Western  Kail-  with  any  loss  that  may  happen  in  the 
road  Co.,  11  Met.  509,  it  was  held  that  course  of  such  delivery  to  A. 
if  A.,  for  whom  goods  are  transported  (t)  Gibson  v.  Culver,  17  Wend.  305. 
by  a  railroad  company,  authorizes  B.  In  this  case  it  was  held  that  it  is  compe- 
te receive  the  delivery  thereof,  and  to  tent  for  a  carrier  to  prove  that  the  uni- 
do  all  acts  incident  to  the  delivery  and  form  usage  and  course  of  the  business 
transportation  thereof  to  A.,  and  J3.,  in-  in  which  he  is  engaged  is  to  leave  the 
stead  of  receiving  the  goods  at  the  usual  goods  at  his  usual  stopping-places  in 
place  of  delivery,  requests  the  agent  of  the  towns  to  which  the  goods  are  di- 
the  company  to  permit  the  car  which  rectcd,  ickkout  notice  to  the  consignees  ; 
contains  the  goods  to  be  hauled  to  a  and  if  such  usage  be  shown  of  so  long 
near  depot  of  another  railroad  com-  continuance,  uniformity,  and  notoriety, 
panj-,  and  such  agent  assents  thereto,  as  to  justify  a  jury  to  find  that  it  was 
aifd  assists  B.  in  hauling  tlie  car  to  such  known  to  the  plaintiff,  the  carrier  will 
depot,  and   B.  there  rcipiests  and  ob-  be  discharged. 

tains  leave  of  that  company  to  use  its         (u)    See    Parmcrs'    and    Mechanics' 

macWnery  to  remov«  the   goods  from  Bank  v.  Champlain  Traiis])ortation  Co., 

the  car;  then  the  company  that  trans-  16  Verm.  52,  18  Id.   131,  23  Id.  186. 

[683] 


662 


THE  LAW  OF  CONTRACTS. 


[book  III. 


must  be  to  the  owner  or  consignee,  or  his  authorized  agent. 
But  if  the  goods  are  left  at  his  residence,  or  (such  delivery 
being  more  appropriate)  at  his  place  of  business,  and  this  is 
equivalent  to  a  delivery  into  his  personal  possession,  it  does 
not  seem  that  any  personal  notice  is  necessary.  Perhaps  it 
may  always  be  presumed  that  the  owner  of  goods  will  re- 
ceive information  if  they  are  left  at  his  house;  and  if  not, 
that  it  is  his  own  fault,  or  if  the  fault  of  others,  not  that  of 
the  carrier.  But  where  a  delivery  by  a  carrier  is  made  at  an 
owner's  house,  but  not  in  a  usual  way,  as  if  the  parcel  were 
placed  in  a  dark  corner  of  an  entrance  or  back  room,  without 
attracting  notice  or  giving  information  to  any  one,  this  cir- 
cumstance might  indicate  either  wrongful  motive  or  culpable 
negligence;  and  such  delivery  would  not  be  a  sufficient  one. 
It  is  undoubtedly  best  in  all  cases  of  delivery  not  to  the  per- 
son himself  to  give  notice  to  him,  or  to  one  certainly  author- 
ized to  receive  notice  for  him. 

Carriers  by  land  usually  deliver  the  goods  they  transport. 


This  is  one  of  the  strongest  cases  in 
the  books  upon  this  point.  The  defend- 
ants were  common-carriers  on  Lake 
ChampUain,  from  Burlington  to  St. 
Albans,  touching  at  Port  Kent  and 
Plattsburgh  long  enough  to  discharge 
and  receive  freight  and  passengers. 
This  action  was  brought  against  tliem 
to  recover  for  the  loss  of  a  package  of 
bank  bills.  It  appeared  in  evidence 
that  the  package  in  question,  which 
was  directed  to  "  Richard  Yates,  Esq., 
Cashier,  Plattsburgh,  N.  Y."  was  de- 
livered by  the  teller  of  the  plaintiffs' 
bank  to  the  captain  of  the  defendants' 
boat,  which  ran  daily  from  Burlington 
to  Plattsburgh,  and  thence  to  St.  Al- 
bans :  and  that,  when  the  boat  arrived 
at  Plattsburgh,  the  captain  delivered 
the  package  to  one  Ladd,  a  whai-fin- 
ger,  and  that  it  was  lost  or  stolen  while 
ia  Ladd's  possession.  No  notice  was 
given  b)'  the  captain  of  the  boat  to  the 
consignee  of  the  arrival  of  the  package, 
nor  had  he  any  knowledge  of.it  until 
after  it  was  lost.  The  principal  ques- 
tion in  the  case  was,  whether  the  pack- 
age was  sufficiently  delivered  to  dis- 
charge the  defendants  from  their  lia- 
bility as  carriers.  The  defendants 
offered  evidence  to   show  that    a  de- 

[684] 


livery  to  the  wharfinger,  without  no- 
tice, under  the  circumstances  of  the 
case,  was  a  good  delivery  according  to 
their  own  xrniform  usage,  and  the  usage 
of  other  carriers  similarly  situated.  The 
case  has  been  before  the  Supreme  Court 
of  Vermont  three  times,  and  that  court 
has  uniformly  held  that,  in  the  absence 
of  any  special  contract,  a  delivery  to 
the  wharfinger  without  notice,  if  war- 
ranted by  the  usage  of  the  place,  was 
sufficient,  and  discharged  the  defend- 
ants from  all  liability.  When  the  case 
was  before  the  court'  the  last  time,  Red- 
field,  J.,  in  delivering  the  judgment, 
said :  —  "If  the  law  fixes  the  extent 
of  the  contract,  in  every  instance,  in  the 
manner  assumed,  then,  most  undoubt- 
edly, are  the  defendants  liable  in  this 
case,  unless  they  can  show,  in  the  man- 
ner required,  some  controlling  usage. 
But  if,  upon  examination,  it  shall  appear 
that  there  is  no  rule  of  law  applicable 
to  the  subject,  and  the  extent  of  the 
transit  is  matter  resting  altogether  in 
proof,  then  the  course  of  business  at 
the  place  of  destination,  the  usage.or 
practice  of  the  defendants,  and  other 
carriers,  if  any,  at  that  port  and  at  that 
wharf,  become  essential  and  controlling 
ingredients  in  the  contract  itself." 


CH.  XII.] 


BAILMENT. 


663 


by  carrying  them  to  the  owner,  or  where  he  directs.  And 
generally  they  can  do  this  as  easily  as  bring  them  into  the 
town  where  he  lives.  But  this  is  not  the  case  with  one  im- 
*portant  class  of  carriers  by  land  ;  we  mean  railroads.  The 
freight  cars  can  go  only  where  the  rails  go,  and  these  termi- 
nate in  the  station-house.  If  the  goods  are  to  be  carried 
farther,  they  must  be  laden  upon  wagons  or  other  carriages 
for  that  purpose.  Moreover,  it  is  usual  for  the  consignor  by 
railroad  to  send  to  the  consignee  notice  of  the  consignment, 
and  very  frequently  a  copy  of  a  receipt,  which  seems  to  take 
the  place  of  a  bill  of  lading.  And  the  arrival  of  the  goods  at 
a  certain  hour  may  usually  be  calculated  upon  with  great 
certainty.  For  all  these  reasons,  and  some  others,  it  seems 
to  be  usual  with  railroads  not  to  send  the  goods  out  of.  their 
depots,  (y)     There  is,  perhaps,  no  objection  to   this  usage 


(v)  Thomas  v.  Boston  &  Providence 
Eailroad  Corp.  10  Met.  472.  This  was 
an  action  against  the  defendants  as 
common-carriers  to  recover  for  the  loss 
of  a  roll  of  leather.  It  appeared  in  evi- 
dence that  four  rolls  of  leather,  the  pro- 
perty of  the  plaintiff,  were  delivered  to 
the  defendants  at  Providence,  to  be 
transported  to  Boston  ;  that  they  were 
so  ti'ansported,  and  were  deposited  at 
the  defendants'  depot  at  Boston ;  that 
a  teamster,  employed  by  the  plaintiff, 
shortly  after  called  at  the  depot,  with  a 
bill  of  the  freight  receipted  by  the  de- 
fendants, and  inquired  for  the  leather  ; 
that  it  was  pointed  out  to  him  by  the 
defendants'  agent,  Allen,  who  had  charge 
of  the  depot ;  that  the  teamster  then 
took  away  two  of  the  rolls,  and  soon 
after  called  again  and  inquired  for  the 
other  two  ;  that  he  was  directed  where 
to  look  for  them;  and  that  he  found 
only  one.  The  court  held  that,  under 
these  circumstances,  the  defendants 
were  not  liable  as  carriers.  Hubbard, 
J.,  said  :  —  "  The  transportation  of 
goods,  and  the  storage  of  goods,  are 
contracts  of  a  different  character ;  and 
though  one  person  or  company  may 
render  both  services,  yet  the  two  con- 
tracts are  not  to  be  confounded  or  blend- 
ed ;  because  the  legal  liabilities  attend- 
ing the  two  arc  different.  The  proprie- 
tors of  a  railroad  transport  merchandise 
over  their  road,  receiving  it  at  one  de- 
pot or  place  of  deposit,  and  delivering 


VOL.    I. 


58 


it  at  another,  agreeably  to  the  direction 
of  the  owner  or  consignor.  But  from 
the  very  nature  and  peculiar  construc- 
tion of  the  road,  the  proprietors  cannot 
deliver  merchandise  at  the  warehouse 
of  the  owner,  when  situated  oft"  the  line 
of  the  road,  as  a  common  wagoner  can 
do.  To  make  such  a  deliver}',  a  dis- 
tinct species  of  transportation  would  be 
required,  and  would  be  the  subject  of  a 
distinct  contract.  They  can  deliver  it 
only  at  the  terminus  of  the  road,  or  at 
the  given  depot  where  goods  can  be 
safely  unladecl,  and  put  into  a  place 
of  safety.  After  such  delivery  at  a  de- 
pot the'  carriage  is  completed.  But. 
owing  to  the  great  amount  of  goods 
transported,  and  belonging  to  so  many 
different  persons,  and  in  consequence  of 
the  ditterent  hours  of  arrival,  by  night 
as  well  as  by  day,  it  becomes  equally 
convenient  and  necessary,  both  for  the 
proprietors  of  the  road  and  the  owners 
of  the  goods,  that  they  should  be  un- 
laded, and  deposited  in  a  safe  place, 
protected  from  the  weather,  and  from 
exposure  to  thieves  and  pilferers.  And 
where  such  suitable  warehouses  arejiro- 
vided,  and  the  goods,  which  arc  not 
called  for  on  their  arrival  at  the  places 
of  destination,  are  unladed  and  scjjara- 
ted  from  tlie  goods  of  other  i)ersons, 
and  stored  safely  in  sucli  wareliouscs  or 
depots,  the  duty  of  the  proprietors  as 
common-carriers  is,  in  our  judgment, 
terminated.     They  have  done  all  they 

[G85] 


664 


THE.  LAW  OF   CONTRACTS. 


[book  III. 


strengthening  itself  into  law.  But  we  think  in  that  case  that 
the  railroad  carrier  should  give  notice  forthwith,  on  the  ar- 
rival of  the  .goods,  to  the  consignee,  if  his  residence  is  known, 
or  can  be  found  by  any  reasonable  exertions.  We  think  the 
law  should  be  held  to  make  this  requirement,  and  that  any 
usage  against  it  would  be  so  far  against  public  policy,  that 
it  might  well  be  doubted' whether  it  should  be  permitted  to 


agreed  to  do ;  they  have  received  the 
goods,  have  transported  them  safely  to 
the  place  of  delivery,  and,  the  consignee 
not  being  present  to  receive  them,  have 
unladed  them,  and  have  put  them  in  a 
safe  and  proper  place  for  the  consignee 
to  take  them  away;  and  he  can  take 
them  at  any  reasonable  time.  The  lia- 
bility of  common-carriers  being  ended, 
the  proprietors  are  by  force  of  law  de- 
positaries of  the  goods,  and  are  bound 
to  reasonable  diligence  in  the  custody 
of  them,  and  consequently  are  only  lia- 
ble to  the  owners  in  case  of  a  want  of 
ordinary  care.  In  the  case  at  bar,  the 
goods  were  transported  over  the  de- 
fendants' road,  and  were  safely  depo- 
sited in  their  merchandise  depot,  ready 
for  delivery  to  the  plaintiff,  of  which  he 
had  notice,  and  were  in  fact  in  part 
taken  away  by  him  ;  the  residue,  a  por- 
tion of  which  was  afterwards  lost,  being 
left  there  for  his  convenience.  No 
agreement  was  made  for  the  storage  of 
the  goods,  and  no  further  compensation 
paid  therefor  ;  the  sum  paid  being  the 
freight  for  carriage,  which  was  payable 
if  the  goods  had  been  delivered  to  the 
plaintiff  immediately  on  the  arrival  of 
of  the  cars,  without  any  storage.  Upon 
these  facts,  we  are  of  opinion,  for  the 
reasons  before  stated,  that  the  duty  of 
the  defendants,  as  common-carriers,  had 
ceased  on  their  safe  deposit  of  the  plain- 
tiff 's  goods  in  the  merchandise  depot ; 
and  that  they  were  then  responsible 
only  as  depositaries  without  further 
charge,  and  consequently,  unless  guilty 
of  negligence,  in  the  want  of  ordinary 
care  in  the  custody  of  the  goods,  they 
are  not  liable  to  the  plaintiff'  for  the  al- 
leged loss  of  a  part  of  the  goods."  And 
in  Norway  Plains  Co.  v.  Boston  & 
.  Maine  Kailroad,  1  Gray,  263,  it  is  decid- 
ed that  the  rule  requiring  carriers  to 
make  personal  delivery  to  the  consignee 
does  not  apply  to  railroads,  transporta- 
tion by'which  more  resembles  sea-car- 
riage than  caiTiage  by  means  of  wagons 

[686] 


and  similar  vehicles  ;  that  the  nature  of 
transportation  of  freight  by  railroad  is 
such  that  the  implied  contract  between 
the  parties  is  that  the  company  will 
transport  the  goods,  discharge  them 
from  the  cars  upon  a  suitable  platform, 
and  there  deliver  them  to  the  consignee 
if  he  is  ready  to  receive  them,  and  if  he 
is  not  that  they  will  place  them  securely 
and  keep  them  a  reasonable  time,  ready 
to  be  delivered  when  called  for ;  that 
from  this  view  of  the  duty  and  contract 
between  the  parties,  the  company  are 
first  common-carriers,  and  after  that 
warehouse-men,  responsible  as  the  for- 
mer until  the  goods  are  removed  from 
the  cars  and  placed  upon  the  platform, 
and  if,  on  account  of  their  arrival  in  the 
night,  or  for  any  reason,  the  consignee 
is  not  then  ready  to  receive  them,  it  is 
the  duty  of  the  company  to  take  care  of 
them,  under  the  liability  of  warehouse- 
men or  keepers  of  goods  for  hire.  And 
the  court  arc  strongly  inclined  to  be  of 
the  opinion  that  it  is  not  necessary  for 
the  company  to  give  notice  of  the  ar- 
rival of  the  goods,  but  that  the  nature 
of  the  transportation  is  such  as  to  dis- 
pense with  it.  —  But  in  Richards  v. 
The  London  &c.  Eailway,  7  C.  B. 
839,  it  was  held  that  where  a  railway 
company  employ  porters  at  their  sta- 
tions to  convey  passengers'  luggage 
from  the  railway  carriages  to  the  car- 
riages or  hired  vehicles  of  the  passen- 
gers, the  liability  of  the  company  as 
earners  continues  until  the  porters  have 
discharged  theii-  duty.  That  was  an 
action  on  the  case  against  the  defend- 
ants for  the  loss  of  a  package.  The 
first  count  of  the  declaration  stated 
that  the  defendants  were  the  owners 
and  proprietors,  of  a  railway,  for  the 
carriage  and  conveyance  of  passengers 
and  their  luggage,  &c.,  from  A.  to  B., 
for  hire  ;  that  the  defendants  were  com- 
mon-caiTiers  for  hire  in  and  upon  the 
said  railway ;  that  the  wife  of  the  plain- 
tiff, at  their  request,  became  a  passen- 


CH.   XII. 


BAILMENT. 


665 


control  the  law ;  at  least  not  unless  it  were  quite  universal, 
and  well  known  to  all.  (iv) 

*  Carriers  by  water  cannot  usually  deliver  goods  at  the 
residence  of  their  consignees,  without  land  carriage,  and  the 
greatest  amount  of  goods  carried  by  water  is  consigned  to 
persons  whose  warehouses,  or  stores,  are  adapted  to  receive 
such  goods  by  being  near  the  water,  and  generally  on  the 
wharves  on  which  they  may  be' landed.  Hence  a  usage  pre- 
vails very  generally  to  deliver  such  goods  by  landing  them 
on  a  wharf,  and  giving  immediate  notice  to  the  consig- 
nees,   (x)      And   it   is    held    that   a   carrier  by  water   may 


ger  in  and  upon  the  railway,  to  be  car- 
ried and  conveyed  therein  and  thereby 
from  A.  to  B.,  together  with  her  lug- 
gage, consisting  of  a  dressing-case,  &c., 
also  to  be  carried  and  conveyed  by  the 
defendants,  as  such  carriers,  in  and 
upon  the  railway  from  A.  to  B.,  and 
there,  to  wit,  at  the  station  or  terminus 
at  B.,  safely  and  securely  delivered  for 
the  plaintiff,  for  reasonable  reward  to 
the  defendants  in  that  behalf  :  and  the 
breach  alleged  was,  that  the  defendants, 
not  regarding  their  duty,  did  not  use 
due  and  proper  care  in  and  about  the  car- 
riage and  conveyance  of  the  dressing- 
case  from  A.  to  B.,  but  took  so  little  and 
such  bad  care  in  and  about  the  carrying 
and  conveying  the  same,  that  by  and 
through  the  carelessness,  negligence,  and 
improper  conduct  of  the  defendants  in  the 
premises,  the  dressing-case  was  lost.  It 
was  proved  that  the  plaintiff's  wife  be- 
came a  passenger  bj'  a  first  class  carriage, 
to  be  conveyed  from  A.  to  B. ;  that  the 
dressing-case  was  placed  in  the  carriage 
under  the  scat ;  that  on  the  arrival  of 
the  train  at  B.,  the  porters  of  the  com- 
pany took  upon  themselves  the  duty  of 
carrying  the  lady's  luggage  from  the 
railway  carriage  to  the  hackney  car- 
riage which  was  to  convey  her  to  her 
residence  ;  and  that  on  her  arrival  there 
the  dressing-case  was  missing.  Ueld, 
that  the  duty  of  tlic  defendants  as  com- 
mon-carriers continued  until  the  lug- 
gage was  placed  in  the  hackney  car- 
riage; and  that  the  evidence  entitled 
the  plaintiff  to  a  verdict  upon  the  first 
count. 

(m')  Michigan  Central  Kailroad  Co. 
V.  Ward,  2  Mich.  538.  See,  however, 
Farmers'  &  ISIechanics'  Bank  v.  Cham- 
plain  Transportation  Co.  ante,  p.  661, 


n.  [u) ;  and  Gibson  v.  Culver,  ante,  p. 
661,  n.  {t),  that  notice  m-ay  be  dispensed 
with  when  usage  fully  warrants  it.  See 
also  the  language  of  Hubbard,  J.,  quoted 
in  the  preceding  note,  and  Shaw,  C. 
J.,  Norway  Plains  Co.  v.  Boston  & 
Maine  Railroad,  1  Gray,  274. 

{x)  Dixon  V.  Dunham,  14  111.  324 ; 
Hyde  v.  Trent  &  Mersey  Nav.  Co.  5 
T.  E.  389.  In  this  last  case  it  was 
held,  that  where  common-carriers  from 
A.  to  B.  charged  and  received  for  cart- 
age of  goods  to  the  consignee's  house  at 
B.,  from  a  warehouse  there,  where  they 
usually  unloaded,  but  which  did  not 
belong  to  them,  they  must  answer  for 
the  goods  if  destroyed  in  the  warehouse 
by  an  accidental  tire,  though  they  al- 
lowed all  the  profits  of  the  cartage  to 
another  person,  and  that  circumstance 
was  known  to  the  consignee.  This  was 
a  case  of  carriage  by  land.  The  ground 
upon  which  the  defendants  were  held 
liable  was,  that  they  made  a  specific 
charge  for  cartage  from  the  warehouse 
where  tliey  unloaded  to  the  liouse  of  the 
consignee.  The  general  question,  wiie- 
ther  a  carrier  by  land  is  bound  to  make 
a  personal  delivery,  was  not  decided, 
though  all  the  judges  expressed  their 
opinion  upon  it ;  —  that  of  Lord  Kenyon 
being  against  such  liability,  and  that  of 
all  tiie  others  judges  being  in  favor  of  it. 
All  the  judges,  however,  agreed  that  a 
carrier  by  water,  bringing  goods  from 
a  foreign  port,  was  not  bound  to  make 
a  personal  delivery  to  tiic  consignee. 
Lord  Kenyon,  in  tiie  course  of  his  opi- 
nion, said:  —  "'If  tlie  defendants  here 
be  liable,  consider  how  far  the  liability 
of  carriers  will  be  extended  :  it  will 
affect  the  owners  of  ships  bringing 
goods  from  foreign  countries  to  mcr- 

[687] 


666 


THE  LAW   OF   CONTRACTS. 


[book  III. 


land  his  goods  at  any  wharf  usually  used  for  landing,  and  is 
not  bound  to  take  them  to  that  which  is  nearest,  or  most 


chants  in  London ;  arc  they  bound  to 
carry  the  goods  to  the  warehouses   of 
the  merchants   here,   or  will   they  not 
have  discharged  their  duty  on  landing 
them  at  the  wharf  to  which  they  gene- 
rally come  ?     It  would  be  strange,  in- 
deed, if  the  owners  of  a  West  Indiaman 
were  held  liable  for  any  accident  that 
happened  to  goods  brought  by  them  to 
England,  after  having  landed  them  at 
their    usual   wharf."     And  Buller,  J., 
saiii  :  —  "It  does   not   appear  to   me 
that  the  difficulties  suggested  respecting 
foreign  ships  exist-     When  goods  are 
brought    here    from  foreign    countries, 
they  are  brought  under  a  bill  of  lading, 
which  is  merely  an  undertaking  to  carry 
from  port  to  port.    A  ship  trading  from 
one  port  to  another  has  not  the  means 
of  carrying  the  goods  on  land,  and,  ac- 
cording  to   the    established    course   of 
trade,  a  delivery  on  the  usual  wharf  is 
such  a  delivery  as  will  discharge  the 
carrier."     And,  per  Grose,  J. :  —  "  The 
case  of  foreign  goods  brought  to  this 
country  depends  on  the  custom  of  the 
trade,  of  which  the  persons  engaged  in 
it  are  supposed  to  be  cognizant ;  by  the 
general  custom  the  liability  of  ship  cai*- 
riers  is  at  an  end  when  the  goods  are 
landed  at  the   usual  wharf."  —  By  the 
custom  of  the  lliver  Thames,  the  mas- 
ter of  a  vessel  is  bound  to  guard  goods 
loaded  into  a  lighter,  sent  for  them  by 
the  consignee,  until  the  loading  is  com- 
plete,   and    cannot    discharge    himself 
from    that    obligation    by    telling    the 
lighterman  he  has  not  sufficient  hands 
on  board  to  take  care  of  them.     Catley 
V.  Wintringham,    Peake,    N.   P.    l.'iO. 
But  it  has  been  much  contested  whe- 
ther the  master  is  by  the  usage  bound 
to  take  care  of  the  lighter,  after  it  is 
fully  laden,  until  the  time  when  it  can 
be  properly  removed  from  the  ship  to 
the  wharf.     At  a  trial  on  this  question, 
it  was   held  that   the  master  was   not 
obliged  to  do  this.    Kobinson  v.  Tur- 
pin,  cited  in  Abbott  on  Shipping,  335. 
When  ships  arrive   from  Turkey,  and 
are  obliged  to  perform  quarantine  be- 
fore their  entry  into  the  port  of  London, 
it  is  usual  for  the   consignee  to   send 
down  persons,  at  his  own  expense,  to 
pack  and  take  care  of  the  goods  ;   and 
therefore,  where  a  consignee  had  omit- 
ted to  do  so,  and  goods  were  damaged 

[688] 


by  being  sent  loose  to  shore,  it  was  held 
that  he  had  no  right  to  call  upon  the 
master  of  the  ship  for  compensation. 
Dunnage  v.  Joliffe,  cited  in  Abbott  on 
Shipping,  335.  —  The  general  question 
as  to  the  duty  of  delivery,  in  the  case  of 
carriers  by  water  bringing  goods  from 
a  foreign  port,  was  much  discussed  in 
the  case  of  Cope  v.  Cordova,  1  Rawle, 
203.     Rogers,  J.,  delivered  the  judgment 
of  the  court,  as  follows  :  —  "  The  sub- 
stance of  a  bill  of  lading  is  a  formal 
acknowledgment  of  a  receipt  of  goods, 
and  an  engagement  to  deliver  them  to 
the  consignee  or  his  assigns.    And  this 
suit  is  brought  on   an  alleged  breach  of 
such  a  contract,  in  the  non-delivery  of 
a  crate  of  merchandise  shipped  on  board 
the  ship  Lancaster  from  Liverpool,  and 
consigned  to  Raphael  Cordova  in  the 
usual  form.     The  goods  were  landed  on 
the  wharf  of  the  Liverpool  packets,  and 
whether  this  amounts  to  a  deliveiy  to 
the  consignee  is  the  principal  question. 
It  must  be  conceded,  that,  by  the  gene- 
ral custom,  the  liability  of  shipowners 
is  at  an  end  when  the  goods  are  landed 
at  the  usual  wharf,  and  this  seems  to  be 
taken  by  the  whole  court  as  a  position 
not  open  to  dispute,  in  the  strongly  con- 
tested case  of  Hyde  v.  Trent  and  Mer- 
sey Nav.  Co.  5  T.  R.  394.     The  usage 
in  Prance,    although   not    uniform   in 
every  particular,  goes  to  the  whole  ex- 
tent of  the  English  doctrine.    At  Eo- 
chelle,  when  the  vessel  is  moored  at  the 
wharf,  the  merchant  freighters,  at  their 
own  expense  and  risk,  have  their  mer- 
chandise deposited  upon  the  deck  of  the 
vessel.    Prom  the  time  when  they  reach 
the  deck,  it  is  the  business  of  the  hands 
on  board  to  receive  and  place  them  in 
their  proper  situation.    In  unlading,  the 
freighters  have  them  taken  in  like  man- 
ner from  the  deck,  by  their  porters,  to 
lower  them  to  the  wharf,  from  which 
time  they  are  at  the  merchant's  risk, 
without  any  liability  on  the  part  of  the 
master  of  the  vessel,  if  they  happen  to 
sustain  any  damage  as  they  are  lowered 
from  the  vessel.    At  Marseilles  it  is  the 
business  of  the  master  to  put  the  mer- 
chandise on  the  whai'f,  after  which  he  is 
discharged.     1  Valin,  510.      And   this 
rule  of  the  French  commercial  code  is 
cited  with  approbation  by  the  learned 
commentator,  in  page  636  of  his  Trea- 


CH.  XII.]  BAILMENT.  667 

convenient  to  the  consignee,  or  that  which  he  specially  di- 
rects, unless  the  carrier  has  previously  agreed  to  obey  such 


tise  on  the  Marine  Ordonnance.  As 
the  master,  in  conformity  with  the  pre- 
vailing usage  in  this  respect,  upon  his 
aiTival  deposits  in  the  custom-house  a 
manifest,  or  general  list  of  the  cargo, 
with  a  designation  of  all  the  individuals 
to  whom  each  parcel  of  the  merchandise 
should  be  respectivel}'  delivered,  and  as 
there  are  always  ofScers  of  the  customs 
who  attend  to  the  unlading,  to  super- 
intend, and  m.ake  a  list  of  all  the  mer- 
chandise which  leaves  the  vessel,  for 
the  purpose  of  ascertaining  whether  the 
manifest  of  the  cargo  which  has  been 
furnished  is  accurate  and  fiiithful,  and 
by  this  means  the  lists  of  these  officers 
constitute  a  proof  of  the  landing  of  the 
merchandise,  it  is  the  end  of  the  en- 
gagement which  the  master  has  con- 
tracted by  the  bill  of  lading.  If,  then, 
disputes  arise,  it  is  only  when  in  the 
bustle  of  a  hasty  discharge  mistakes 
occur  on  the  part  of  those  who  convey 
the  merchandise  to  the  warehouses,  by 
introducing  articles  into  one  which 
ought  to  have  gone  into  another.  The 
error  is  almost  always  discovered  by 
ascertaining  what  parts  of  the  cargo  of 
the  vessel  have  been  conveyed  to  the 
different  warehouses.  '  But  if  it  hap- 
pens,' says  the  commentator,  '  that  the 
error  cannot  be  discovered,  the  master 
is  always  discharged  when  it  appears 
by  the  list  of  the  officers  of  the  royal 
customs  that  he  has  caused  all  the  mer- 
chandise in  his  bills  of  lading  to  be 
placed  on  the  wharf.'  The  ordinances 
of  Kochelle  and  JIarseilles  are  the  text 
from  which,  in  the  manner  of  our  own 
commentators,  he  proceeds  to  deduce 
the  general  custom.  I  understand, 
from  the  observations  of  the  commen- 
tator, that  the  usage  is  not  confined  to 
Rochelle  and  Marseilles,  but  that  in 
France,  as  in  Great  Britain,  it  is  co- 
extensive with  the  limits  of  the  king- 
dom ;  and  in  this  country  we  arc  not 
without  authority  to  the  same  purpose. 
The  usage  has  been  found  to  pi'evail  in 
a  sister  city,  as  appears  from  a  case  the 
name  of  which  is  not  now  recollected, 
lately  determined  by  Judge  Irving,  in 
New  York.  The  same  point  has  also 
been  ruled  by  the  Supreme  Court  of 
Massachusetts,  in  Chickeriug  v.  Fowler, 
4  Pick.  371.  A  promise  by  a  master  of 
a  vessel  to  deliver  goods  to  a  consignee 

58* 


does  not  require  that  he  should  deliver 
them  to  the  consignee  personally,  or  at 
any  particular  wharf.  It  is  sufficient  if 
he  leaves  them  at  some  usual  place  of 
unlading,  giving  notice  to  the  consignee 
that  they  are  so  left.  There  is  an  ob- 
vious policy  in  commercial  nations  con- 
forming to  the  usages  of  each  other, 
and  it  is  also  important  that  there  be  a 
uniformity  of  decisions  in  our  domestic 
tribunals  on  mercantile  questions.  As 
there  will  be  great  convenience  in  the 
local  usage  conforming  to  the  general 
custom,  it  will  be  incumbent  on  those 
who  maintain  the  contrary  to  make  the 
exception  from  the  rule  plainly  appear. 
In  unloading  a  vessel  at  the  port  of 
Philadelphia,  it  is  usual  as  soon  as  arti- 
cles of  bulk,  such  as  crates,  are  brought 
upon  deck,  to  pass  them  over  the  side 
of  the  ship,  and  land  them  on  the  wharf. 
The  owners  station  a  clerk  on  the 
wharf,  who  takes  a  memorandum  of  the 
goods,  and  the  day  they  arc  taken 
away,  and  this  for  the  information  of 
his  employers.  A  manifest  or  report 
of  the  cargo  is  made  by  the  master,  and 
deposited  at  the  custom-house,  and  the 
collector,  on  the  arrival  of  the  vessel 
within  his  district,  puts  and  keeps  on^ 
board  one  or  more  inspectors,  whose 
duty  it  is  to  examine  the  contents  of 
the  cargo,  and  superintend  its  delivery. 
And  no  goods  from  a  foreign  port  can 
be  unladen  or  delivered  from^the  ship 
in  the  United  States,  but  in  open  day, 
between  the  rising  and  setting  of  the 
sun,  except  by  special  license ;  nor  at 
any  time  without  a  permit  from  the  col- 
lector, which  is  granted  to  the  con- 
signee upon  payment  of  duties,  or  se- 
curing them  to  be  paid.  The  holders 
of  a  bill  of  lading  are  presumed  to  be 
well  informed  of  the  probable  period  of 
the  vessel's  an-ival,  and  at  any  rate  such 
arrival  is  matter  of  notoriety  in  all  ma- 
ritime places.  The  consignee  is  pre- 
viously informed  of  the.  shipment,  as  it 
is  usual  for  one  of  the  bills  of  lading  to 
be  kept  by  the  merchant,  a  second  is 
transmitted  to  the  consignee  by  the  post 
or  packet,  while  the  third  is  sent  by  the 
master  of  the  ship  together  with  the 
goods.  With  the  benefit  of  all  these 
safeguards,  if  the  consignee  uses  ordi- 
narj-  diligence,  there  is  as  little  danger 
in    this    country  as  in  England    and 

[689] 


668 


THE   LAW   OF   CONTRACTS. 


BOOK   III. 


direction,  {y)     But  in  all  such  cases  of  landing,  and  indeed 
in  all  cases  of  delivery  of  goods  by  a  carrier,  in  any  other 


France,  of  inconvenience  or  loss,  where- 
as the  risk  would  be  greatly  increased 
if  it  should  be  the  duty  of  the  ship- 
owner to  sec  to  the  actual  receipt  of  the 
goods,  and  particularly  in  the  case  of  a 
general  ship  with  numerous  consign- 
ments on  board,  manned  altogether  by 
foreigners  unacquainted  with  the  lan- 
guage at  the  port  of  delivery.  I  have 
taken  some  pains  to  ascertain  the  opi- 
nion and  practice  of  merchants  of  the 
city  on  this  question,  which  is  one  of 
general  concern.  My  inquiries  have 
i-esulted  in  this,  that  the  goods,  when 
landed,  have  heretofore  been  considered 
at  the  risk  of  the  consignee,  and  that 
the  general  understanding  has  been, 
that  the  liability  of  the  ship-owner 
ceases  upon  the  landing  of  the  goods  at 
the  usual  wharf.  I  see  no  reason  to 
depart  from  a  rule  which  has  received 
such  repeated  sanctions,  from  which  no 
inconvenience  has  heretofore  resulted, 
and  which  it  is  believed  in  practice  has 
conduced  to  the  general  welfare."  The 
learned  judge  concluded  with  saying 
that  the  court  would  wish  to  be  under- 
stood as  giving  no  opinion  on  the  law 
which  regulates  the  internal  or  coasting 
trade,  to  which  they  understood  the 
%asc  of  Ostrander  v.  Brown,  15  Johns. 
39,  to  apply  ;  and  that  they  did  not  con- 
sider the  present  decision  as  interfering 
with  the  principles  of  that  case.  It  has 
generally  been  held,  as  the  learned 
judge  inftimates,  that  the  rule  is  more 
strict  in  regard  to  delivery  in  the  inter- 
nal and  coasting  trade  than  in  the  fo- 
reign trade.  Thus,  in  "VVardell  r.  Mou- 
rillyan,  2  Esp.  693,  which  was  an  action 
on  the  case  for  not  delivering  an  anchor 
sent  by  the  defendant's  hoy,  it  appeared 
in  evidence  that  the  defendant  was  the 
owner  of  an  hoy,  which  sailed  from 
Deal  to  Dice's'  Quay,  near  London 
Bridge  ;  that  the  anchor  had  been  ship- 
ped on  board  this  hoy,  with  a  direc- 
tion to  be  delivered  to  INIessrs.  Bell, 
Anchram,  and  Buxton ;  that  the  de- 
fendant had  delivered  it  at  Dice's  Quay ; 
that  the  wharfinger  had  paid  the  hoy- 
man  the  freight,  and  had  given  him  a 
receipt  for  the  anchor ;  and  one  witness 
proved  that,  except  in  the  case  of  flour, 
the  hoymen  never  concerned  themselves 
about  goods   after  they  had  delivered 


them  at  the  wharf.  Lord  Kenyan,  after 
making  some  observations  upon  the  evi- 
dence, left  it  to  the  jury  to  say  what 
was  the  custom ;  and  they  found  a  ver- 
dict for  the  plaintiff.  So  in  Hemphill 
V.  Chenie,  6  W.  &  S.  62.  That  was  an 
action  against  the  defendant,  the  owner 
of  a  keel-boat  on  the  Ohio  river,  to  re- 
cover the  price  of  a  box  of  dry  goods 
delivered  to  him  at  Pittsburgh,  and 
consigned  to  Eowland,  Smith,  &  Co., 
Louisville.  The  defendant  gave  evi- 
dence to  show  that  the  box  of  goods  in 
question  was  carried  safely  to  Louis- 
ville, and  deposited  on  the  wharf  there ; 
and  that  notice  was  given  to  the  con- 
signees. The  question  was  whether 
there  was  a  sufficient  delivery.  Grier, 
J.,  in  summing  up  to  the  jury,  said:  — 
"It  is  contended  that,  according  to  the 
custom  of  the  port  of  Louisville  and  the 
other  cities  on  these  western  rivers,  the 
depositing  of  goods  on  the  wharf,  and 
giving  notice  to  the  consignee,  consti- 
tute a  sufficient  delivery  in  law,  whether 
the  consignee  actually  receives  the 
goods  or  not.  In  other  words,  the  care 
and  responsibility  of  the  carrier  cease 
the  moment  he  has  deposited  goods 
on  the  wharf  and  sent  notice  to  the 
consignee,  and  this  whether  the  con- 
signee refuses  or  neglects  to  receive 
them  or  not.  If,  in  such  cases,  the  car- 
rier may  abandon  the  goods  on  the 
wharf  and  the  property  of  the  distant 
owners  thus  be  left  as  a  subject  of  plun- 
der to  the  first  finder,  it  must  be  admit- 
ted that  the  subject  is  one  of  considera- 
ble interest  to  those  whose  property  is 
committed  to  the  chances  of  transporta- 
tion on  these  western  waters,  and  has 
necessarily  to  pass  through  the  hands 
of  60  many  different  carriei's  and  con- 
signees. It  must  be  apparent  to  every 
one,  that  however  much  steamboat  men 
and  other  carriers  on  our  rivers  may 
affect  the  diction  and  phraseology  of 
maritime  cities  in  their  bills  of  lading, 
insurances,  &c.,  j^et  that  a  hasty  or  in- 
discriminate application  of  our  commer- 
cial and  maritime  code  of  laws  and  cus- 
toms might  not  be  convenient  or  judi- 
cious. Goods  may  be  '  shipped '  on 
board  steamboats  and  canal-boats  from 
the  '  port '  of  Pittsburgh  to  the  '  port ' 
of  Louisville  ;  and  yet  it  might  happen 


{y)  Chickering  v.  Fowler,  4  Pick.  371. 
[690] 


CH.   XII.] 


BAILMENT. 


669 


way  than  putting  them  into  the  actual  possession  of  the  con- 
signee, or  into  his  house  or  store,  it  is  absolutely  essential 
*that  notice  should  be  given  to  the  consignee,  so  that  he  may 
forthwith  take  possession  of  the  goods.  (2-)     We  have  seen 


that  the  rules  of  commercial  law,  which 
regulate  trade  on  the  ocean,  and  freight 
shipped  from  Liverpool  to  Philadelphia 
might  be  very  inconvenient  of  applica- 
tion to  our  western  waters.  Hence  in 
Cope  V.  Cordova,  1  Kawle,  203,  which 
decides  that  '  the  liability  of  the  ship- 
owner ceases  when  the  goods  are  land- 
ed at  the  usual  wharf,'  many  good  rea- 
sons are  given  why  such  a  rule  exists 
in  the  trade  between  two  maritime 
cities,  which  cannot  apply  to  this  shift- 
ing transportation  from  point  to  point 
on  our  western  waters  ;  and  the  learned 
judge  who  delivers  the  opinion  of  the 
Supreme  Court  in  that  case  is  careful 
to  observe,  that  they  do  not  intend  by 
that  decision  to  interfere  with  the  law 
that  regulates  the  internal  or  coasting 
trade,  or  at  all  to  dissent  from  the  case  of 
Ostrander  v.  Brown,  15  Johns.  .39."  The 
learned  judge  then  proceeded  to  com- 
ment on  the  unreasonableness  of  hold- 
ing such  a  delivery  to  be  sufficient,  and 
the  jury  under  his  instructions  found  a 
verdict  for  the  plaintiff.  The  case  was 
afterwards  carried  up  to  the  Supreme 
Court,  and  that  court  held  the  instruc- 
tion to  be  correct.  To  the  same  effect 
is  Ostrander  v.  Brown,  15  Johns.  39, 
though  the  distinction  between  the  in- 
ternal and  coasting  trade  and  foreign 
trade  is  not  expressly  taken.  In  that 
case,  goods  were  put  on  board  of  the 
defendant's  vessel  to  be  carried  to  Al- 
bany, and,  on  arriving  there,  were  by 
the  defendant's  direction  put  on  the 
•wharf.  It  was  held  that  this  was  not  a 
delivery  to  the  consignee,  and  that  evi- 
dence of  a  usage  to  deliver  goods  in 
this  manner  was  immaterial,  but  that  the 
defendant  was  liable  in  an  action  of 
trover  for  such  part  of  the  goods  as 
was  not  actually  delivered  to  the  con- 
signee. 

(z)  This  was  very  authoritatively  de- 
clared by  Mr.  Justice  Porter,  in  Kohn  v. 
Packard,  3  Louis.  224.  "  The  contract 
of  affreightment,"  said  he,  "does  not 
impose  on  the  owner  of  the  vessel 
the  obligation  to  deliver  merchandise 
shipped  on  board  of  her  to  the  con- 
signee, at  his  residence.  It  is  a  con- 
tract to  carry  from  port  to  port,  and  the 


owners  of  a  vessel  fulfil  the  duties  im- 
posed on  them,  by  delivering  the  mer- 
chandise at  the  usual  places  of  discharge. 
The  authorities  cited  on  argument,  as 
well  as  the  reason  of  the  thing,  clearly 
establish  this  rule.  But  though  the 
contract  does  not  require  the  owners  of 
the  vessel  to  deliver  the  goods  at  any 
other  place  in  the  port  but  that  where 
ships  generally  discharge  their  cargoes, 
it  is  not  to  be  concluded  that  they  have 
a  right  to  land  the  goods  at  these  places 
and  release  themselves,  by  doing  so, 
from  all  further  care  and  responsibility, 
without  giving  notice  to  the  person  who 
is  to  receive  them.  The  authorities  on 
this  subject  are  contradictory.  Some 
of  those  cited  support  fully  the  position 
that  a  landing  on  the  wharf  is  equiva- 
lent to  a  delivery.  "We  should  have  re- 
viewed them,  had  not  the  counsel  who 
argued  the  case  carefully,  on  the  part 
of  the  defendant,  very  properly  refrain- 
ed from  pressing  the  rule  to  that  extent. 
We  have  the  high  authorit}'  of  Chan- 
cellor Kent  for  saying,  that  the  better 
opinion  is,  there  must  be  a  delivery  on 
the  wharf  to  some  person  authorized  to 
receive  the  goods,  or  some  act  which 
is  equivalent  to,  or  a  substitute,  for  it. 
The  contrary  doctrine  appears  to  us 
too  repugnant  to  reason  and  justice  to 
be  sanctioned  by  any  one  who  will  fol- 
low it  out  to  the  consequences  to  which 
it  inevitably  leads.  Persons  to  whom 
goods  are  sent  may  be  absent  from  the 
port  when  the  ship  reaches  it ;  they  may 
be  disabled  by  sickness  from  attending 
to  their  business ;  they  may  not  be  in- 
formed of  the  arrival  of  the  vessel. 
Under  such  circumstances,  or  many 
others  similar  that  may  be  supposed, 
it  would  be  extraordinary  indeed  if  the 
captain  were  authorized  to  throw  the 
goods  on  shore,  where  they  could  not 
fail  to  be  exposed  to  injury  from  the 
weather,  and  would  be  liable  to  be  sto- 
len. Tliere  would  be  little  difference  in 
such  an  act  and  any  other  that  would 
occasion  their  loss.  Contracts  impose 
on  parties  not  merely  the  obligations 
expressed  in  them,  but  every  tiling 
which  by  law,  c<[uity,  and  custom,  is 
considered  as  incidental  to  the  particu- 

[691] 


670' 


THE  LAW   OF   CONTRACTS. 


[book  in. 


that  leaving  goods  in  the  office,  or  store,  or  even  in  the  car- 
riage of  the  carrier,  is  no  delivery  to  him,  to  make  him  re- 
sponsible for  them  as  carrier,  unless  he  has  notice  of  such 
delivery,  that  he  may  forthwith  take  charge  of  the  goods  and 
provide  for  their  safety.  In  the  same  way,  no  delivery  by 
him  discharges  him  from  responsibility,  unless  the  party  en- 
titled to  the  goods  has,  in  fact,  or  by  construction  of  law, 
such  knowledge  of  the  delivery  as  will  enable  him  to  take 
charge  of  them  at  once.  The  notice  must  therefore  be 
prompt,  and  distinct.  And  indeed  it  seems  to  be  settled  in 
*  England,  that  the  landing  of  goods  upon  a  wharf,  with  no- 
tice, is  not  a  sufficient  delivery  of  them,  unless  made  so  by  a 
distinct  and  established  usage,  {a) 


lar  contract,  or  necessary  to  carry  it  into 
effect.  La.  Code,  1987.  Delivery  is 
not  merely  an  incident  to  the  contract 
of  affreightment,  it  is  essential  to  its 
discharge,  and  as  there  cannot  be  a  de- 
livery without  the  act  of  two  parties,  it 
is  indispensable  the  freighter  should  be 
apprised  when  and  where  the  ship- 
owner, or  his  agent,  is  ready  to  hand 
over  the  goods."  See  also  Northern  v. 
Williams,  6  Louis.  Ann.  Rep.  578 ; 
House  V.  The  Schooner  Lexington,  2 
N.  y.  Legal  Observer,  4 ;  Chickering  v. 
Fowler,  4  Pick.  371;  Price  v.  Powell, 
3  Comst.  322  ;  Michigan  Central  Eail- 
road  Co.  v.  Ward,  2  Mich.  533.  As  to 
what  will  constitute  a  sufficient  notice, 
see  Kohn  v.  Packard,  3  Louis.  224. 

(a)  Gatliffe  v.  Bourne,  4  Bing.  N.  C. 
314.  Li  this  case,  to  a  count  in  assump- 
sit, by  A.  against  B.,  upon  a  contract 
by  B.,  safely  and  securely  to  carry  in  a 
steam-vessel  certain  goods  of  A.  from 
Belfast  to  Dublin,  and  from  Dublin  to 
London,  and  to  deliver  the  same  at  Lon- 
don to  A.  or  to  his  assigns,  upon  pay- 
ment of  freight,  —  assigning  a  breach  in 
the  non-delivery  of  the  goods  in  Lon- 
don, B.  pleaded  that  the*  goods  were 
put  on  board  under  a  bill  of  lading, 
by  which  they  were  made  deliverable 
to  A.,  or  his  assigns,  on  payment  of 
freight ;  that  after  the  arrival  of  the  ves- 
sel and  goods  at  London,  B.  caused  the 
goods  to  be  unshipped,  and  safely  and 
securely  landed  and  deposited  upon  a 
certain  wharf  at  London,  there  to  re- 
main until  they  could  be  delivered  ac- 
cording to  the  bill  of  lading, — the  said 
wharf  being  a  place  at  which  goods  con- 

[692] 


veyed  in  steam-vessels  from  Dublin  to 
London  were  accustomed  to  be  land- 
ed and  deposited,  for  the  use  of  con- 
signees, and  a  place  fit  for  such  pur- 
pose ;  and  that  the  goods,  whilst  they 
remained  upon  the  said  wharf,  and  be- 
fore a  reasonable  time  for  the  delivery 
thereof  had  elapsed,  were  accidentally 
destroyed  by  fire.  It  was  further  plead- 
ed to  the  same  count,  that  after  the 
arrival  of  the  vessel  and  goods  at  Lon- 
don, B.  was  ready  and  willing  to  deliver 
the  goods  to  A.  or  his  assigns,  but  that 
neither  A.  nor  his  assigns  was  or  were 
there  ready  to  receive  the  same ;  where- 
upon B.  caused  the  goods  to  be  landed 
on  the  said  wharf,  there  to  remain  until 
A.  or  his  assigns  should  come  and  re- 
ceive the  same,  or  until  the  same  could 
be  conveyed  and  delivered  to  A.  or  his 
assigns,  with  the  like  averment  as  to 
the  said  wharf  being  a  usual  and  a  fit 
place ;  and  that  the  goods,  whilst  they 
remained  upon  the  said  wharf,  and  be- 
fore A.  or  his  assigns  came  or  sent  for 
the  same,  and  before  B.  had  been  i-e- 
quested  to  deliver  the  same  to  A.  or  his 
assigns,  or  a  reasonable  time  for  con- 
veying them  from  the  said  wharf  to  A. 
or  his  assigns  had  elapsed,  and  before 
the  same  could  be  removed  therefrom, 
were  accidentally  destroyed  by  fire. 
The  court  held  that  both  pleas  were  bad. 
And  Tindal,  C.  J.,  said:  — "The  de- 
fendants, in  each  of  the  pleas,  profess  to 
substitute  a  delivery  at  Fenning's  wharf, 
in  the  port  of  London,  for  and  in  the 
place  of  a  delivery  '  at  the  port  of  Lon- 
don, to  the  plaintiif  or  his  assigns,'  as 
required  by  the  terms  of  the  bill  of 


CH.   XII.]  BAILMENT.  *671 

If  the  carrier  be  a  warehouse-man,  or  if,  without  being  a 
regular  warehouse-man,  he  has,  as  most  common-carriers 
have,  a  place  of  reception  and  deposit  for  his  goods,  it  may 
often  be  a  question  of  some  difficulty,  after  the  transportation 
*is  completed,  whether  the  carrier  retains  that  character  and 
its  peculiar  responsibility.  The  answer,  in  general,  is  this. 
Where,  by  the  known  usage  and  course  of  business,  the 
goods,  when  they  arrive,  are  to  be  placed  in  the  carrier's 
warehouse  or  office,  and  kept  there  without  pay  to  him  until 
the  owner  takes  them,  then  his  responsibility  as  carrier 
ceases  upon  their  arrival  and  notice  to  the  owner;  because 
keeping  them  in  his  office  is  now  for  the  benefit  of  the  owner 
of  the  goods  exclusively,  as  it  is  for  his  interest  to  have  them 
removed,  so  that  they  may  no  longer  encumber  his  office,  (b) 
This  reason  does  not  apply,  where  compensation  is  made  for 
the  storage,  distinct  from  that  for  transportation.  But  here 
the  two  duties  of  storing  and  of  carrying  are  perfectly  distinct, 
made  so  by  the  undertaking  of  the  party ;  and  the  responsi- 
bility which  belongs  to  one  of  these  contracts  cannot  be  ex- 
tended to  the  other. 

Where  there  is  no  usage,  nor  any  special  agreement, 
which  requires  that  the  goods  should  be  left  in  the  store  or 
office  of  the  carrier  after  their  arrival,  then,  as  we  have  seen, 
he  is  not  justified  in  keeping  them  there ;  it  is  his  duty  to 
deliver  them  at  once.     And  if  he  does  not  deliver  them,  and 


lading ;  and  call  upon  ns  to  say,  by  our  encc  to  the  means  and  accommodation 
judgment,  that  such  delivery,  under  the  for  landing  goods  at  ditterent  places; 
circumstances  stated  in  each  plea,  is  a  the  time  of  the  arrival  and  departure  of 
good  delivery  in  point  of  law  under  the  vessel ;  the  state  of  the  tide  and 
the  bill  of  lading.  But  wc  know  of  no  wind  ;  interruptions  from  accidental 
general  rule  of  hiw  which  governs  the  causes;  and  all  the  other  circumstances 
delivery  of  goods  under  a  bill  of  lading,  which  belong  to  each  particular  port  or 
where  such  delivery  is  not  expressly  in  place  of  delivery.  The  delivery,  there- 
accordance  with  the  terms  of  the  bill  of  fore,  of  these  goods,  not  being  alleged 
lading,  except  tliat  it  must  be  a  delivery  in  the  pleas  to  have  been  made  accord- 
according  to  the  practice  and  custom  ing  to  the  custom  or  practice  of  the 
usually  observed  in  the  port  or  place  of  port  of  London,  wc  cannot  take  notice 
delivery.  An  issue  raised  upon  an  alle-  that  it  is  sanctioned  by  such  practice ; 
gatiou  of  such  a  mode  of  delivery  would  and  the  delivery  must  therefore  stand 
accommodate  itself  to  the  facts  of  each  or  fall  upon  the  allegations  contained 
particular  case ;  and  would  let  in  every  in  each  plea."  s.  c.  3  M.  &  Gr.  043, 
species  of  excuse  from  the  strict  and  7  Id.  850.  See  also  Dixon  v.  Dunham, 
literal  compliance  with  the  precise  terms  14  111.  324. 

of  the  bill  of  lading,  which  must  neces-         (6)  See  ante.  p.  619,  n.  (r.)  and  p.  G63, 

sarily  be  allowed  to  prevail  with  refer-  n.  (v.) 

[693] 


672 


THE   LAW   OF   CONTRACTS. 


BOOK   III. 


SO  fails  in  this  duty,  he  continues  liable  as  carrier ;  or,  if  not 
as  carrier,  still  liable  absolutely  for  loss  or  injury  to  the  goods 
while  in  his  possession,  because  that  possession  is  wrong- 
ful, (c)     And  in  some  cases  of  non-delivery  the  carrier  may  *  be 


(c)  Miller  v.  The  Steam  Nav.  Co.  13 
Barb.  361.  In  this  case  goods  belong- 
ing to  the  plaintiff  were  received  at  the 
city  of  New  York  by  the  defendants, 
who  were  common-carriers  on  the  Hud- 
son river  between  Albany  and  New 
York,  to  be  carried  by  them  to  Albany, 
and  there  delivered  to  A.,  the  agent  of 
a  line  of  boats  on  the  Erie  canal.  The 
goods  were  put  on  board  a  barge  of  the 
defendants,  at  New  York,  and  taken  to 
Albany,  where  they  arrived  on  the 
morning  of  the  17th  of  August,  1848. 
A  portion  of  them  were  unloaded  from 
the  barge,  and  put  into  a  float  in  the 
Albany  basin,  belonging  to  the  defend- 
ants, which  was  a  stationary  floating 
craft,  kept  for  the  purpose  of  receiving 
goods  brought  up  the  river,  and  from 
which  goods  were  re-shipped  into  canal 
boats  to  be  taken  west.  While  the 
goods  were  in  the* process  of  being  pass- 
ed from  the  barge  to  the  float,  and  be- 
fore they  were  delivered  to  A.,  they, 
together  with  the  barge  and  float,  were 
destroyed  by  a  fire  which  originated  in 
the  city  of  Albany,  and  afterwards 
spread  to  the  piers  and  shipping.  Held, 
that  the  defendants,  having  contracted 
to  deliver  the  goods  to  A.  at  Albany, 
they  continued  to  hold  the  relation  of 
common-carriers  until  the  goods  were  so 
delivered,  or  until  a  reasonable  time 
should  have  elapsed  after  notice  to  A. 
of  their  arrival,  and  an  off'er  to  deliver ; 
and  that  they  were  liable  for  the  value. 
Held  also,  that  the  defendants  were  not 
to  be  treated  as  icarehouse-men  of  the 
goods,  after  the  arrival  of  the  barge  at 
the  pier  at  Albany;  that  they  had  no 
right  to  warehouse  the  goods,  except  in 
case  of  the  absence  of  A.,  or  his  refusal 
or  neglect  to  receive  them,  after  notice. 
Welles,  J.,  said:  —  "It  is  contended,  on 
behalf  of  the  appellants,  that  upon  the 
arrival  of  the  barge  at  the  pier  at  Al- 
bany, their  relation  became  changed  from 
common-carriers  to  that  of  warehouse- 
men of  the  goods  in  question,  and  that 
as  there  is  no  negligence  imputed  to 
them,  and  as  warehouse-men  are  only 
liable  in  case  of  negligence,  no  recovery 
can  be  had  against  them.  The  contract 
of  shipment  was  to  deliver  the  goods  to 

[694] 


F.  M.  Adams,  the  agent,  at  Albany,  of 
the  Rochester  city  line,  which  lino  the 
respondent  had  selected  for  their  trans- 
portation west  of  Albany ;  and,  in  my 
judgment,  the  appellants  continued  to 
hold  tlie  relation  of  common-carriers  in 
reference  to  the  goods,  until  they  were 
so  delivered,  or  until  a  reasonable  time 
should  have  elapsed  after  notice  to  the 
agent  of  their  arrival,  and  an-  offer  to 
deliver.  We  so  ruled  on  a  similar 
question  in  the  case  of  Goold  and  others 
V.  Chapiu  and  Mallory,  10  Barb.  612. 
The  appellants  had  no  right  to  ware- 
house the  goods,  unless  in  case  of  the 
absence  of  the  person  authorized  to  re- 
ceive them,  or  his  refusal  or  neglect  to 
receive  them,  after  reasonable  notice. 
If  the  contract  was  to  deliver  them  to 
Adams,  they  had  no  more  right  to  store 
them  at  Albany  than  at  New  York,  or 
any  intermediate  point  on  the  river, 
unless  for  one  of  the  reasons  men- 
tioned. The  legal  obligations  and  lia- 
bilities of  the  appellants,  as  common- 
carriers,  were  fastened  upon  them  from 
the  time  they  received  the  goods  in  New 
York,  until  they  had  performed  the  ser- 
vice which  the  transaction  implied,  and 
delivered  them  agreeably  to  their  con- 
tract, unless  prevented  by  the  conduct 
of  the  owner  or  his  agent.  There  does 
not  appear  to  have  been  any  notice 
given  to  Adams  of  the  arrival  of  the 
goods  :  no  offer  to  deliver  them  to  him ; 
no  act  on  the  part  of  the  appellants,  in- 
dicating that  they  desired  or  intended 
to  change  their  character  from  com- 
mon-earners to  that  of  warehouse-men. 
Adams  went  on  board  the  barge  some 
two  or  three  hours  after  its  arrival,  and 
saw  the  trip  book.  He  testifies  that  he 
had  a  boat  near  by,  ready  to  take  the 
goods  from  the  float,  upon  which,  as 
appears  by  the  testimony  of  the  captain 
of  the  barge,  it  was  the  invariable  cus- 
tom of  the  defendants  to  ship  goods 
brought  by  them  up  the  river,  before 
they  were  delivered  on  board  the  canal 
boats.  The  goods  in  question  were  in 
the  process  of  being  passed  from  the 
barge  to  the  float,  and  before  it  was 
completed,  and  while  a  portion  of  them 
was  in  the  float  and  the  residue  in  the 


CH.  XII.]  BAILMENT.  *673 

sued  in  trover,  as  having  converted  the  goods  to  his  own 
use.  (d) 

In  general,  when  the  owner  or  consignee  may  be  consider- 
ed as  himself  taking  charge  of  the  goods,  or  when  his  acts  or 
language  justify  the  carrier  in  believing  that  the  owner  con- 
*  siders  himself  as  in  charge  of  them,  then  the  responsibility 
of  the  carrier  ends,  (e) 

The  particular  obligation  of  stage-coach  proprietors,  rail- 
roads, and  the  like,  to  deliver  the  baggage  of  their  passen- 
gers, has  been  much  considered.  These  carriers  are,  princi- 
pally, carriers  of  passengers,  and  only  incidentally  of  the 
baggage  of  the  passengers,  for  which  they  do  not  generally 
receive  any  distinct  compensation.  Nevertheless  they  are 
held  very  strictly,  both  from  the  nature  of  the  contract  and 
from  motives  of  public  policy,  to  the  obligation  of  delivering 
the  baggage  of  each  proprietor  to  him  at  the  end  of  the  jour- 
ney, in  all  cases.  (/)  And  if  such  delivery  be  made  errone- 
ously, but  innocently,  on  a  forged  order,  the  carrier  is  still 
held,  (g-) 

As  the  carrier  is  bound  to  deliver  the  goods,  so  the  owner 
is  bound  to  receive  and  remove  them,  and  pay  the  freight  for 
them.  And  if  the  carrier  is  warranted  in  delivering  the  goods 
by  keeping  them  at  his  own  office  or  warehouse  and  giving 

barge,  the  fire  drove  away  the  hauds  paid  A.  for  the  whole.     This  was  held 

engaged,  and  destroyed  both  the  barge  to  amount  to  a  conversion  by  A.,  for 

and  float,  with  all  the  goods  they  con-  which  B.  could  maintain  trover  against 

tained.     Under  these  circumstances,  it  him.     And  per   White,  J.: — "Young 

is  preposterous  to  contend  that  there  was  a  bailee  or  carrier,  who  undertook 

was  any  thing  like  an  attempt  or  inten-  to  deposit  the  flour  at  a  particular  place 

tion  to  store  the  goods,  or  any  occasion  for  the  plaintiff.    This  he  did  not  do, 

or  justification  for  storing  them,  if  such  but  wilfully  and  of  his  own  accord  left 

had  been  the  intention.     On  the  con-  it  at  another  place,  whence  it  was  inno- 

trary,  the  appellants  were  merely  pre-  cently  taken  by  a  third  person,  who  paid 

paring   and   getting   ready  to   deliver  him,  the  defendant,  for  it."     See  llooke 

them,  but  had  not  commenced  the  deli-  v.  Midland  Kailway  Co.  14  E.  L.  &  E. 

very.     They  were  not  in  fact  ready  or  175. 

in  a  situation  to  commence  the  delivery.        (e)  Thomas  v.  B.&  P.  Railroad  Cor- 

The  goods  were  still  in  their  possession  poration,  10  Met.  472  ;  Strong  v.  Na- 

as  common-carriers,  to  all  intents  and  tally,  4  B.  &  P.  16 ;  Eagle  v.  White,  6 

purposes."    See  also  Goold  v.  Chapin,  Whart.   505 ;  Lewis  v.   The   Western 

10  Barb.  612.  Railroad  Corp.  11  Met.  509. 
(d)  Bullard  v.  Young,  3  Stewart,  46.        (/)   Richards   v.   The    Loudon    &c. 

A.  undertook  to  carry  certain  flour  for  Railway,  7  C.  B.  839  ;  Hollistcr  v.  Now- 

B.  to  a  certain  place,  and  having  dcpo-  len,  19  Wend.  234  :  Cole  v.  Goodwin, 
sited  it  by  the  way,  C.  took  part  of  it  Id.  251 ;  Bomar  v.  Maxwell,  9  llumph. 
by  mistake.     B.  refusing  to  receive  part  621. 

only,  C.   received  the   remainder,  and        (g)  Powell  v.  Myers,  26  Wend.  590. 

[695] 


674' 


THE  LAW  OF   CONTRACTS. 


[book   III. 


notice,  and  if  lie  has  given  such  notice,  and  the  owner  delays 
more  than  a  reasonable  time  to  take  them,  they  are  no  longer 
at  the  risk  of  the  carrier,  as  a  carrier,  but  as  a  mere  deposi- 
tary, gratuitously,  or  for  compensation,  according  to  the  cir- 
cumstances, (/i)  So  if  the  freight  be  not  paid,  and  the  car- 
rier *  retains  the  goods  therefor,  they  are  not  at  his  risk  as 
carrier,  but  as  warehouse-man,  or  gratuitous  bailee,  (i) 

If  the  owner  of  goods  gives  new  directions  as  to  their  de- 
livery, after  they  are  taken  by  the  carrier,  of  course  these 
directions  may  be  followed  by  him.  And  if  they  are  inde- 
finite, or  if  they  require  the  carrier  to  be  governed  by  informa- 
tion or  directions  which  he  does  not  receive,  he  may  discharge 
himself  from  the  obligation  of  delivery  by  storing  them  for 
the  owner,  in  the  best  way  he  can.  (j)  So  the  carrier  is  dis- 
charged by  any  new  agreement  made  between  him  and  the 
owner  or  shipper,  or  by  the  consent  of  the  owner  or  shipper 
to  some  other  disposition  of  them  ;  which  may  be  express  or 
implied,  (k)     And  the  shipper  may  accept  the  goods  at  some 


(h)  Powell  u.  Myers,  26  Wend.  591, 
per  Verplanck,  Senator.  In  Goold  v. 
Chapin  et  al.,  10  Barb.  612,  the  defend- 
ants, the  proprietors  of  the  Hudson 
Eiver  Une  of  towboats,  received  on 
board  one  of  their  barges,  in  the  city 
of  New  Yorli,  goods  belonging  to  mer- 
chants in  Brockport,  to  be  by  them 
transported  to  Albany,  and  there  deli- 
vered to  the  agent  of  a  company  for 
transporting  goods,  &c.,  on  the  canal, 
styled  "  The  Atlantic  Line."  The  goods 
arrived  safely  at  Albany,  on  Monday 
the  14th  August,  and  were  put  on  the 
float  belonging  to  the  owners  of  the 
barge,  which  they  kept  in  the  Albany 
basin  for  the  purpose  of  receiving  goods 
brought  by  their  barges,  and  then  trans- 
ferring them  to  the  canal  craft,  which 
came  alongside  of  the  float  to  receive 
their  loading.  On  the  15th  of  August, 
the  agent  of  "  The  Atlantic  Line  "  was 
notified,  on  behalf  of  the  proprietors  of 
the  Hudson  River  line,  that  there  were 
goods  on  their  float  for  his  line,  and  he 
was  requested  to  call  and  take  them 
away.  The  like  notification  and  re- 
quest were  made  to  him  on  the  next 
day,  and  repeated  again  on  the  17th 
August,  w'hen  the  agent  said  he  was 
taking  some  goods  from  another  line, 

[696] 


and  when  he  got  them  on  he  would 
shove  up  to  the  float  and  take  those 
goods  on.  But  on  the  same  afternoon, 
tlie  float,  with  the  goods  in  question, 
was  consumed  by  fire.  The  court  held 
that,  under  the  circumstances,  the  strict 
liability  of  the  defendants,  as  common- 
carriers,  had  ceased  at  the  time  of  the 
fire,  and  that  they  were  then  holding 
the  goods  as  bailees  in  deposit  merely ; 
and  the  goods  having  been  destroyed 
without  any  fault  on  their  part,  that 
they  were  not  liable. 

(i)  Storr  V.  Crowley,  McClel.  &  Y. 
129. 

(j)  Boyle  V.  McLaughlin,  4  H.  &  J. 
291. 

(k)  Thus,  if  A.,  for  whom  goods  are 
transported  by  a  railroad  company,  au- 
thorizes B.  to  receive  the  delivery  there- 
of, and  to  do  all  acts  incident  to  the  de- 
livery and  transportation  thereof  to  A., 
and  B.,  instead  of  receiving  the  goods 
at  the  usual  place  of  delivery,  requests 
the  agent  of  the  company  to  permit  the 
car  which  contains  the  goods,  to  be 
hauled  to  a  near  depot  of  another  rail- 
road company,  and  such  agent  assents 
thereto,  and  assists  B.  in  hauling  the 
car  to  such  depot,  and  B.  there  requests 
and  obtains  leave  of  that  company  to 


CH.   XII.] 


BAILMENT. 


675 


place  short  of  that  to  which  they  should  have  been  carried, 
and  at  which  by  the  original  contract  delivery  should  have 
been  made.  And  such  acceptance,  whatever  be  the  motive 
for  it,  discharges  the  carrier,  if  it  be  voluntary,  and  if  it  be 
made  before  any  cause  of  action  has  arisen  against  the  car- 
rier, for  non-delivery,  or  other  default.  (1)  After  such  cause 
*exists  by  reason  of  the  injury  that  has  been  inflicted,  nothing 
discharges  the  carrier  but  a  release,  or  the  receipt  of  some- 
thing by  way  of  accord  and  satisfaction,  (m) 

If  the  owner  or  shipper,  by  his  illegal  act,  prevents  or  in- 
terferes with  the  delivery  of  the  goods  by  the  carrier,  the 
obligation  of  delivery  is  at  an  end.  But  only  an  actual  ille- 
gality has  this  effect,  (n)     An  alleged  one,  if  it  be  not  true 


use  its  maehinery  to  remove  the  goods 
from  the  ear;  then  the  company  that 
transported  the  goods  is  not  answerable 
for  the  want  of  care  or  skill  in  the  per- 
sons employed  in  so  removing  the  goods 
from  the  car,  nor  for  the  want  of  strength 
in  the  machinery  used  for  the  removal 
of  them,  and  cannot  be  charged  with 
any  loss  that  may  happen  in  the  course 
of  such  delivery  to  A.  Lewis  v.  The 
Western  Kailroad  Corp.  11  Met.  509. 
And  Dewei/,  J.,  said:  —  "The  duty  of 
the  defendants  was  to  transport  the  arti- 
cle, and  deliver  it  at  their  depot.  But 
this  duty  may  be  modilied  as  to  the 
manner  of  its  performance.  The  omis- 
sion of  the  defendants  to  remove  goods 
from  the  cars  and  place  them  in  the 
warehouse,  or  upon  tlie  platform,  would 
not,  in  all  cases,  subject  them  to  an 
action  for  non-delivery,  or  for  negli- 
gence in  the  delivery.  Suppose  a  bale 
of  goods  was  transported  by  tiiem,  and, 
on  its  arrival  at  the  depot,  the  owner 
should  step  into  the  car,  and  ask  for  a 
delivery  there,  and  thereupon  the  goods 
should  be  passed  over  to  him,  in  the 
car.  The  delivery  would  be  i)crfcct; 
and  if  any  casualty  should  subseniiently 
occur,  in  taking  out  the  bale,  the  loss 
would  be  his.  The  place  and  manner 
of  delivery  may  always  be  varied  with 
the  assent  of  the  owner  of  the  ]>ro- 
perty ;  and  if  he  interferes  to  control  or 
direct  in  the  matter,  he  assumes  the 
responsibility."  See  Scotthorn  v.  South 
Staifordshire  Railway  Co.  18  E.  L.  «fc 
E.  55.3. 

(1)  Parsons  v.  Hardy,  14  "VVcnd.  215; 


VOL.  I. 


59 


Harris  v.  Eand,  4  New  Hamp.  259, 555 ; 
Welch  V.  Hicks,  6  Cow.  504  ;  Lorent  v. 
Kentring,  1  N.  &  McC.  132;  Hunt  r. 
Haskell,  24  Maine,  339.  But  the  goods 
must  be  voluntarily  received.  Rossiter 
V.  Chester,  1  Doug.  [Mich.]  154.  And 
in  Lowe  v.  Moss,  12  111.  477,  it  was  held 
that  the  receipt  by  the  owner  of  a  part 
of  a  lot  of  goods  in  transitu,  though  it 
would  discharge  the  carriei-,  from  all 
further  liability  as  to  such  ])art  would 
not  so  discharge  him  as  to  the  residue. 

(vi)  Willoughby  r.  Backhouse,  2  B. 
&  C.  821  ;  Baylis  v.  Usher,  4  M.  &  P. 
790  ;  Bowman  v.  Teall,  23  Wend.  306. 

(n)  Gosling  v.  Iliggins,  1  Camp. 
451.  This  was  an  action  for  the  non- 
delivery of  ten  pipes  of  wine,  shipped 
at  the  island  of  Madcria,  on  board  a 
vessel  of  Avhich  the  defendant  was  own- 
er, to  be  carried  to  Jamaica,  and  from 
thence  to  England.  When  the  vessel 
arrived  off  Jamaica,  she  was  seized,  with 
her  cargo,  for  a  supposed  viohition  of 
the  revenue  laws,  and  there  condemned ; 
but,  upon  an  appeal  to  the  Privy  Coun- 
cil in  England,  the  sentence  of  condem- 
nation was  reversed.  Upon  tin  se  facts, 
Lord  EUenhorough  held  that  the  defend- 
ant was  liable,  and  must  seek  his  reme- 
dy against  tiie' officers  of  goverrinicnt. 
So  in  Spence  v.  Chadwick,  10  Q.  B. 
517,  which  was  assumpsit  by  a  shijiper 
on  a  contract  of  aflicitihtnicnt.  The 
declaration  stated  that  tlic  i)laiiititr  had 
shipped  on  board  the  dcfcmlant's  ship, 
then  in  the  bay  of  Gibraltar,  and  bound 
for  London,  calling  at  Cadiz,  certain 
goods  to  be  safely  conveyed  to  Loudon, 

[fi97] 


676' 


THE  LAW   OF   CONTRACTS. 


[book  III. 


ill  fact,  does  not  discharge  the  carrier  ;  but  if,  though  not  true 
in  fact,  or  although  the  cause  of  a  seizure  or  other  inter- 
ference with  the  goods  which  prevents  their  delivery  is  not 
substantiated,  yet  if  there  be  a  justifiable  cause  for  such  seiz- 
ure, it  would  seem  reasonable  that  the  carrier  should  not  be 
held  responsible  for  the  consequences.  It  would  .certainly 
be  unjust  to  hold  him  so,  where  it  was  the  fault  of  the  owner 
or  shipper  that  such  apparent  cause  for  seizure  existed. 

*  Nor  is  the  carrier  liable  where  the  goods  are  thrown  over- 
board from  necessity,  to  save  life  or  property ;  (o)  if  to  save 
property,  all  the  property  that  is  saved  must  contribute  to 
make  up  the  loss,  under,  what  is  termed  in  the  mercantile 
law,  a  general  average,  (p)     Nor  if  the  goods  perish  from 


and  there  delivered  in  good  order,  the 
act  of  God,  the  Queen's  enemies,  fire, 
and  all  and  every  other  dangers  and 
accidents  of  the  seas,  rivers,  and  navi- 
gation, of  whatever  nature  or  kind  so- 
ever, save  risk  of  boats,  &e.,  excepted, 
the  plaintiff"  paying  freight.  The  de- 
claration then  averred  a  promise  by  the 
defendant  so  to  convey  and  deliver  the 
cargo,  saving  the  above  exceptions  ;  and 
alleged  as  a  breach  that  he  failed  to  do 
so.  The  defendant  pleaded  that  the 
ship  in  the  course  of  her  voyage  called 
at  Cadiz,  and  was  then  within  the  juris- 
diction of  the  officers  of  customs  there, 
and  of  a  certain  court  of  Spain,  (de- 
scribed in  the  plea)  ;  that  while  the  ship 
was  there,  the  goods  were,  according  to 
the  law  of  Spain,  lawfully  taken  out  of 
the  ship  by  the  said  officers,  against  the 
will  and  without  the  default  of  the  de- 
fendant, on  a  charge  of  suspicion  of 
their  being  contraband  according  to  the 
law  of  Spain,  and  were  confiscated  by  a 
decree  of  the  said  court,  upon  the  charge 
aforesaid.  Upon-  demurrer,  the  court 
held  that  the  plea  alleged  no  excuse 
within  the  express  exceptions  in  the 
contract ;  that  the  decree  of  confiscation 
was  in  itself  no  answer ;  and  that  it  did 
not  appear  by  the  plea  to  have  been  in- 
curred through  any  fault  of  the  plain- 
tiff'. 

(o)  Mouse's  case,  12  Co.  Rep.  G3  ; 
Bird  V.  Astcock,  2  Bulst.  280 ;  2  Rol. 
Abr.  567 ;  Halwerson  v.  Cole,  1  Spears, 
321.  In  Kenrig  v.  Eggleston,  Aleyn, 
93,  it  is  said  that  Rolle,  C.  J.,  cited  one 
Barcroft's  case,  "  where  a  box  of  jew- 

r698] 


els  was  delivered  to  a  ferryman,  who, 
knowing  not  what  was  in  it,  and  being 
in  a  tempest,  threw  it  overboard  into 
the  sea;  and  resolved  that  he  should 
answer  for  it."  But  Sir  William  Jones, 
in  commenting  upon  this  case,  says  :  — 
"  I  cannot  help  suspecting  that  there 
was  proof  in  this  case  of  culpable  negli- 
gence, and  probably  the  casket  was  both 
small  and  light  enough  to  have  been 
.  kept  longer  on  board  than  other  goods ; 
for  in  the  case  of  Gravesend  barge, 
cited  on  the  bench  by  Lord  Coke,  it  ap- 
pears that  the  pack  which  was  thrown 
overboard  in  a  tempest,  and  for  which 
the  bargeman  was  held  not  answerable, 
was  of  great  value  and  great  weight; 
although  this  last  circumstance  be  omit- 
ted by  Rolle,  who  says  only,  that  the 
master  of  the  vessel  had  no  information 
oj  its  contents."  See  Jones  on  Bailm. 
108. 

(p)  But  the  owners  of  goods  shipped 
on  deck,  and  thrown  overboard  in  a 
storm,  are  not  entitled  to  general  aver- 
age ;  nor  is  the  owner  of  the  vessel  lia- 
ble for  them  as  carrier,  in  such  case. 
Smith  V.  Wright,  1  Caines,  43  ;  Lenox 
V.  United  Ins.  Co.  3  Johns.  Cas.  178, 
But  in  Gillett  v.  Ellis,  11  111.  579,  where 
goods,  stowed  on  the  main  deck  of  a 
propeller-,  were  necessarily  cast  over- 
board, in  a  tempest,  by  the  order  of  the 
master,  to  preserve  the  vessel  and  crew, 
it  was  held  that  the  owner  of  the  goods 
was  entitled  to  the  benefit  of  a  general 
average.  And  per  Treat,  C.  J. :  —  "  It 
is  insisted  that  the  plaintiff  cannot  claim 
contribution,  because  his  goods  were 


CH.    XII.] 


BAILMENT. 


*677 


inherent  defect,  (q)  nor  if  the  owner  or  shipper  has  been  neg- 
*  ligent  or  fraudulent  in  not  disclosing  the  peculiar  nature  of 
goods  requiring  peculiar  care,  by  the  want  of  which  care  they 
have  perished  or  suffered  injury,  (r)  But  the  carrier  is  bound 
to  take  all  such  reasonable  care  of  goods  as  he  knows  or 
should  know  to  be  necessary  for  them. 

If  the  carrier,  on  the  ground  of  his  liability  for  damages  to 
the  goods  he  undertook  to  transport,  pays  for  such  damages, 
it  is  equivalent  to  a  delivery  of  them  in  safety,  and  reesta- 
blishes his  claim  for  freight,  (s) 


SECTION  X. 

WHERE  A   THIRD   PARTY   CLAIMS  THE   GOODS. 

One  question  in  regard  to  the  carrier's  obligation  to  deliver 
goods  to  the  shipper  or  consignor,  has  been  much  agitated, 


stowed  on  the  deck  of  the  vessel.  The 
general  rule  undoubtedly  is,  that  the 
owner  of  the  goods  which  are  placed  on 
the  deck  of  a  ship,  and  are  swept  over- 
board by  the  action  of  the  wind  or 
waves,  or  cast  into  the  sea  by  command 
of  the  master,  in  order  to  protect  the 
vessel  and  crew,  is  not  entitled  to  the 
benefit  of  a  general  average.  The  cargo 
on  deck,  from  its  situation,  increases 
the  difficulty  of  navigating  the  ship,  and 
is  more  exposed  to  peril  than  that 
which  is  under  cover ;  and,  if  swept 
away  or  cast  overboard,  the  owner  must 
bear  the  loss,  without  contribution  from 
the  owners  of  the  vessel  and  the  cargo 
under  hatches.  But  this  case  does  not 
fall  within  the  operation  of  this  rule. 
Propellers  are  a  class  of  vessels  but  re- 
cently introduced  in  the  navigation  of 
the  lakes,  to  which,  from  the  peculiarity 
of  their  construction,  and  the  general 
usage  respecting  them,  this  general  rule 
is  not  applicable.  They  are  double 
deckers,  with  two  holds.  By  the  gene- 
ral custom  prevailing  in  reference  to 
them,  goods  stowed  on  the  main  deck, 
or  upper  hold,  are  regarded  as  under 
hatches,  and  as  safe  as  those  stowed  in 
the  lower  hold,  or  where  the  cargo  in 


ordinary  vessels  is  only  considered  as 
under  cover.  The  master  is  allowed, 
by  this  general  custom,  to  stow  the 
cargo  either  in  the  hold  or  on  the  main 
deck,  at  his  convenience.  No  distinc- 
tion is  made  in  the  price  of  transporta- 
tion by  the  carrier,  or  in  the  rates  of 
insurance  by  the  underwriter.  The 
cargo  below  and  between  decks  is  put 
on  the  same  footing.  This  universal 
usage,  resulting  from  the  cliaracter  of 
the  vessel,  must  govern  the  rights  and 
liabilities  of  the  owners  of  the  vessel 
and  cargo.  The  owner  of  goods,  which 
are  stowed  on  the  main  deck  of  a  pro- 
peller, and  necessaiily  cast  overboard 
by  the  direction  of  the  master,  to  pre- 
serve the  vessel  and  crew,  is,  therefore, 
entitled  to  the  benefit  of  a  general  aver- 
age, as  much  as  the  owner  of  goods  that 
are  stowed  in  the  hold  would  be,  under 
like  circumstances." 

(7)  Farrar  r.  Adams,  Bui.  N.  P.  G9 ; 
Clark  V.  Barnwell,  12  IIow.  272. 

(r)  Edwards  v.  Sherratt,  1  East,  604; 
Titehburne  v.  White,  1  Str.  145 ;  Bat- 
son  V.  Donovan,  4  B.  &  Aid.  21. 

(s)  Hammond  v.  McClurcs,  1  Bay, 
101. 

[699] 


678 


THE   LAW   OF   CONTRACTS. 


[book   III. 


and  perhaps  is  not  quite  settled.  It  arises  in  the  case  of 
another  party  claiming  the  goods  as  owner,  and  taking  them 
in  that  character  from  the  carrier.  Will  such  taking  excuse 
the  carrier  for  non-delivery  ?  If  the  goods  are  demanded 
from  him  by  a  third  party  on  this  ground,  can  he  deliver  the 
goods  and  justify  his  conduct  ?  It  is  quite  certain  that  the 
carrier  cannot  himself  raise  the  question  of  title  in  a  third 
person,  and  on  that  ground  refuse  delivery  to  the  party  ori- 
ginally holding  them,  (t)  And  it  is  undoubtedly  the  general 
rule,  that  the  carrier  cannot  deny  the  title  of  the  party  from 
whom  he  has  received  the  goo(^  for  transportation.  In 
*  general,  no  agent  can  defend  against  the  action  of  his  prin- 
cipal by  setting  up  the  jus  tertii  in  his  own  favor,  (w)  On 
the  other  hand,  if  the  carrier  delivers  them  to  a  third  party, 
and  it  can  be  shown  in  an  action  against  him  that  this  third 
party  was  the  actual  and  lawful  owner,  and  that  the  plain- 
tiff, who  delivered  the  goods  to  the  carrier,  had  no  right  to 
them  whatever,  this  certainly  is  a  sufficient  defence,  {v)     It 


(t)  Anon.,  cited  in  Laclouch  v.  Towle, 
3Esp.  114.  This  was  a  case  tried  be- 
fore Mr.  Justice  Gould,  and  was  to  the 
following  effect.  A  carrier  had  a  par- 
cel of  goods  delivered  to  him,  to  be  car- 
ried from  Maidstone  to  London.  While 
the  goods  lay  at  his  warehouse,  a  person 
came  there  who  said  the  goods  were  his, 
and  claimed  them  from  the  carrier ;  the 
carrier  said  he  could  not  deliver  them  ; 
but  that  if  he  was  indemnified  he  would 
keep  them,  and  not  deliver  them  accord- 
ing to  order.  An  indemnity  was  given ; 
and  the  goods  not  being  delivered  ac- 
cording to  order,  the  party  by  whom 
they  were  delivered  to  the  carrier 
brought  an  action  against  the  carrier. 
The  learned  judge  would  not  permit 
him  to  set  up  any  question  of  property 
out  of  the  plaintiff;  and  held,  that  he 
having  received  the  goods  from  him, 
was  precluded  from  questioning  his 
title,  or  showing  a  property  in  any 
other  person.  And  Lord  Kenyan,  be- 
fore whom  the  case  was  cited,  admit- 
ted it  to  be  law.  See  also  ante,  p. 
621,  n.  {z.) 

(u)  Nickolson  v.  Knowles,  5  Mad. 
47  ;  Mvler  v.  Fitzpatrick,  6  Mad.  & 
Geld.  360;  Dixson  v.  Hamond,  2  B. 
&  Aid.  310  ;  Roberts  v.  Ogilby,  9  Price, 
269;  Hardman  v.  Willcock,'  9  Bing. 
[700] 


382,  n.  a. ;  Bates  v.  Stanton,  1  Duer, 
79. 

(v)  This  was  settled,  after  much  con- 
sideration, in  King  v.  Richards,  6  Whart. 
418.  The  defendants  in  that  case  were 
common-carriers  of  goods  between  New 
York  and  Philadelphia,  and  had  signed 
a  receipt  for  certain  goods  as  received 
of  A.,  which  they  promised  to  deliver 
to  his  order.  In  trover  by  the  indorsees 
of  this  paper,  who  had  made  advances 
on  the  goods,  it  was  held,  that  the  de- 
fendants might  prove  that  A.  had  no 
title  to  the  goods  ;  that  they  had  been 
fraudulently  obtained  by  him  from  the 
true  owner ;  and  that  upon  demand 
made,  they  had  delivered  them  up  to 
the  latter.  Kennedy,  J.,  said  :  —  ''It  is 
said  that  it  would  be  a  breach  of  tnist 
or  an  act  of  treachery,  on  the  part  of 
the  bailee,  to  deliver  the  goods,  even  on 
demand,  to  the  true  owner,  notwith- 
standing he  has  received  them  from  a 
wrongdoer,  because  he  promised  to  re- 
store the  goods  to  such  wrongdoer.  If 
the  bailee  in  such  case  receive  the  goods 
from  the  bailor  innocently,  under  the 
impression  made  by  the  bailor  that  he 
is  the  owner  thereof,  or  has  the  right  to 
dispose  of  them  in  the  manner  he  is 
doing,  and  therefore  promises  to  return 
the  goods  ^0  the  bailor,  it  is  very  obvi- 


CH.   XII.] 


BAILMENT. 


*679 


is  held,  in  general,  that  if  he  does  not  yield  to  an  adverse 
claim  by  a  third  party,  he  is  liable  to  an  action,  in  case  the 
title  of  this  party  be  good,  (iv)  The  carrier  may  have  his 
*  interpleader  in  equity  to  ascertain  who  has  the  right;  but  it 
is  not  easy  to  see  what  adequate  means  of  self-protection  he 
has  at  common  law.     And  yet  he  should  be  permitted,  in 


ous  that  such'  a  promise  ought  not  to  be 
regarded  as  binding,  because  obtained 
through  a  false  impression,  made  wil- 
fully by  the  bailor;  and  truth,  which 
lies  at  the  foundation  of  justice,  as  well 
as  all  moral  excellence,  would  seem  to 
require,  in  every  such  case,  that  the 
goods  should  be  delivered  up  to  the 
true  owner,  especially  if  he  demand  the 
same,  instead  of  the  wrongful  bailor. 
But  if  the  bailee  knew  at  the  time  he 
received  the  goods,  and  made  the  pro- 
mise to  redeliver  them  to  the  bailor, 
with  a  view  to  favor  the  bailor,  that  the 
latter  had  come  wrongfully  by  them, 
either  by  having  taken  them  tortiously 
or  feloniously  from  the  owner,  then  the 
bailee  thereby  became  a  participant  in 
the  fraud  or  the  felony,  and  it  would  be 
abhorrent  to  every  principle  of  justice 
that  he  should  be  protected  under  such 
circumstances  against  the  demand  or 
claim  of  the  owner.  This  promise,  how- 
ever, of  the  bailee,  is  said  to  be  binding 
on  him  only,  and  is  not  such  as  his 
personal  representatives  are  bound  to 
regard  ;  and  the  reason  assigned  for  this 
is  because  the  goods  have  come  to  their 
possession  by  operation  of  law.  This 
doctrine,  if  it  were  to  be  allowed,  would 
certainly  be  singularlv  anomalous,  and 
unlike,  in  its  eti'ect,  to  any  other  pro- 
mise i-ecognized  by  the  law  as  bind- 
ing." See  also  Bates  v.  Stanton,  1 
Duer,  79. 

(iv)  Wilson  V.  Anderton,  1  B.  &  Ad. 
450.  In  tiiis  case  the  captain  of  a  ship, 
who  had  taken  goods  on  freight,  and 
who  claimed  a  lien  upon  them,  but 
whose  claim  was  unfounded,  delivered 
them  to  the  defendant  as  his  bailee. 
Tiie  plaintiff,  who  was  the  owner  of  the 
goods,  demanded  them  of  the  defend- 
ant, but  he  refused  to  deliver  them  with- 
out the  directions  of  the  bailor.  The 
court  held  that  the  bailor  not  having 
any  lien  upon  the  goods,  the  refusal  of 
the  bailee  was  sufficient  evidence  of 
a  conversion.     Lord  Ihita-ilen,  C.  J-, 

59* 


said :  —  "A  bailee  can  never  be  in   a 
better  situation  than  the  bailor.     If  the 
bailor  has  no  title,  the  bailee  can  have 
none,  for  the  bailor  can  give  no  better 
title  than  he  has.     The  right  to  the  pro- 
perty  may,   therefore   be   tried    in  an 
action  against  the  bailee,  and  a  refusal 
like  that  stated  in  this  case  has  always 
been  considered  evidence  of  a  conver- 
sion.    The  situation  of  a  bailee  is  not 
one  without  remedy.     He  is  not  bound 
to  ascertain   who    has   the   right.     He 
may  file  a  bill  of  interpleader  in  a  court 
of  equity.     But  a  bailee  who  forbears 
to  adopt  that  mode  of  proceeding,  and 
makes  himself  a  party  by  retaining  the 
goods  for  the  bailor  must  stand  or  fall, 
by   his   title."      Litlledale,   J. :  —  "  The 
question  is,  whether,  under  the  circum- 
stances stated  in  this   case,  the  bailee 
can  set  up  any  title   against   the   real 
owner  ?     What   is   the   situation   of  a 
bailee  1     He  has  no  other  title  except 
that  which  the  bailor  had.     As  to  the 
nisi  prius  case  before    Gould,   J.,    [see 
ante,  n.  (t),]  it  is  not  applicable  to  the 
present  point.     There   the   carrier,  on 
the  goods  being  demanded  by  a  third 
party,  voluntarily  identified  himself  with 
that  party,  by  proposing  to  retain  them 
on  an  indemnity,  and  ofl^ering  to  set  up 
the  title  of  that  party  on  an  action  by 
the  bailor.     Now  a  lessee   cannot  dis- 
pute the  title  of  his  lessor  at  the  time 
of  the  lease,  but  he  may  show  that  the 
lessor's  title  has  been  put  an  end   to; 
and  therefore  in  an  action  of  covenant 
by  the  lessor,  a  plea  of  eviction  by  title 
paramount,  or  that  which  is  equivalent 
to  it,  is  a  good  plea,  and  a  threat  to  dis- 
train or  bring  an  ejectment,  by  a  person 
having  good  title  would  be  equivalent 
to  an  actual  eviction.     So  here  if  the 
bailor  brought  an  action  against  the  de- 
fendant as  bailee,  the  latter  might,  on 
the  same  principle,  show  that  tiie  plain- 
tiff recovered  the  value  of  the  goods,  or 
that,  on  being  threatened  with  an  .action 
by  a  person  who  had  good  title  to  the 
goods,  he  had^delivered  them  to  him." 

'    [701] 


680  *  THE  LAW  OF  CONTRACTS.         [BOOK  III 

some  way,  to  demand  security  of  the  party  whose  title  seems 
to  him  the  better  and  to  whom  he  is  therefore  willing  to 
give  the  goods.  And  whenever  security  is  refused,  there 
should  be  no  recovery  against  him,  unless  the  better  title  of 
the  person  claiming  the  goods  was  obvious  and  certain,  or 
there  were  other  circumstances  indicating  that  the  carrier 
had  not  acted  with  entire  good  faith  or  proper  discretion. 
But,  in  the  present  state  of  the  authorities,  it  seems  that  if 
the  carrier  be  called  upon  by  such  antagonistic  claimants,  he 
must  decide  between  them  at  his  own  peril. 

If  the  goods  are  stopped  in  transitu,  this  would  involve 
.  questions  which  could  be  answered  only  by  the  law  of  "  stop- 
page in  transitu"  which  is  elsewhere  considered. 


SECTION  XI. 
COMPENSATION. 

This  is  sometimes  fixed  by  law ;  as  for  incorporated  com- 
panies, ferries,  &c.  Where  it  is  not  so  fixed,  the  carrier  may 
*  determine  it  himself.  But  having  adopted  and  made  known 
a  usual  rate,  he  is  so  far  bound  by  it,  that  on  tender  of  this 
rate  he  must  receive  the  goods,  and  can  recover  no  more  if 
they  are  not  prepaid  and  he  carries  them ;  and  whether  it  be 
fixed  by  law,  or  by  his  own  established  usage,  it  must  be 
applied  equally  and  indifferently ;  all  persons  being  charged 
the  same  price  for  carriage  of  the  same  quantity  the  same 
distance,  (x)  Where,  however,  it  is  not  fixed  by  law,  the 
carrier  may  change  it  at  his  discretion,  and  all  parties  are 
bound  who  have,  or  might  have  but  for  their  own  fault,  sea- 
sonable knowledge  of  such  change.  If  the  hire  to  which  he 
is  entitled  be  not  paid,  he  is  not  bound  to  deliver  the  goods, 
and  if  he  now  retains  them  in  his  warehouse  or  place  of 
business,  he  is  liable,  in  case  of  loss  or  injury,  only  for  negli- 

(x)  See  ante,  p.  650,  n.  {t.)     It  seems  can  maintain  no  action  for  their  carriage 

that  although  a  carrier  need  not  re-  until  the  goods  are  delivered.    Barnes 

ceive  goods  until  the  price  of  carriage  is  v.  Marshall,  4  E.  L.  &  E.  45. 
paid,  yet  if  he  does  so  receive  them  he 

[702] 


CH.  XII.]  BAILMENT.  *681 

gence.  His  liability  is  no  longer  that  of  a  common-carrier, 
but  that  of  a  depositary  for  hire  or  gratuitously,  as  the  case 
may  be.  iy)  For  he  now  holds  the  goods  by  virtue  of  the 
right  we  shall  now  proceed  to  consider. 


SECTION  XII. 

OF  THE  LIEN  AND   AGENCY   OF  THE   CARRIER;   AND  HIS  RESPON- 
SIBILITY BEYOND   HIS   OWN  ROUTE. 

Whether  a  private  earner  has  a  lien  on  the  goods  for  his 
freight,  is  not,  as  we  have  already  said,  determined  by  the 
authorities.  Generally,  perhaps,  it  has  been  considered  that 
one  of  the  distinctions  between  the  private  carrier  and  the 
common-carrier  is,  that  the  first  has  no  such  lien,  while  the 
latter  has,  and  has  had  for  centuries,  {z)  No  part  of  the 
law  of  bailments  is  more  firmly  established  than  that  the 
common-carrier  has  this  lien.  He  may  not  only  refuse  to 
carry  goods  unless  the  freight  is  paid  to  him,  but  if  he  carry 
them,  and  the  freight  is  withheld,  he  may  retain  the  goods, 
and  obtain  his  freight  from  them  in  any  of  the  ways  in  which 
*  a  party  enforces  a  lien  on  personal  property,  (a)  And  while 
he  holds  them  on  this  ground,  they  are  not  at  his  risk  as  a 
common-carrier,  for  he  is  responsible  only  as  any  other  party 
who  holds  property  as  security  for  debt. 

It  has  been  questioned  whether  a  common-carrier,  who 

(y)  Younf^  v.   Smith,  3   Dana,   91.  son  liable  for  the   charge.    Bailey  v. 

See  ante,  p.  674,  n.  («.)  Quint,  22  Verm.  464 ;  Forth  v.  Simp- 

{z)  Skinner  v.  Upshaw,  2  Ld.  Raym.  son,  13  Q.  B.  689  ;  Bigelow  v.  Ileaton, 

752 ;  Hunt  v.  Haskell,  24  Maine,  339  ;  6  Hill,  43,  4  Denio,  496.     But,  s<smhle, 

Hayward    v.    Middleton,    1    So.    Car.  per  Beardsley,  J.,  that  the  lien  may  be 

Const.  Rep.  186  ;  EUisw.  James,  5  Ohio,  retained  after  delivery  by  the   agrce- 

88  ;  Bowman  v.  Hilton,  11  Ohio,  303.  ment  of  the  parties.     Id.    And  it  is  so 

(a)  See  Hunt  v.  Haskell,  24  Maine,  held  in  Sawyer  v.  Fisher,   32  Jlaine, 

339  5  Fox  V.  McGregor,  11  Barb.  41. —  28.     So  if  a  carrier  be  induced  to  dc- 

A  relinquishment  of  possession   by  a  liver  goods  to  the  consignee,  by  a  false 

carrier,  or  other  person  who  has  a  lien  and   fraudulent  promise  of  the  latter 

on  property,  is  an  abandonment  of  the  that  he  will  pay  the  freight  as  soon  as 

lien.     By  a  transfer  of  the  possession  they  are  received,  the  delivery  will  not 

the  holder  is  deemed  to  yield  up  the  se-  amount  to  a  waiver  of  the  carrier's  lien, 

curity  he  has  by  means  of  the  custody  but  he  may  disaffirm  the  delivery,  and 

of  the  property,  and  to  trust  only  to  tlic  sue  the  consignee  in  replevin.     Biyelow 

responsibility  of  the  owner,  or  other  per-  v.  Heaton,  supra. 

[703] 


682*  THE  LAW   OP   CONTRACTS.  [BOOK   III. 

carries  goods  of  a  party,  but  without  his  order  or  knowledge, 
can  maintain  a  lien  for  the  freight.  Generally,  the  owner 
would  have  the  right  to  refuse  such  service,  and  to  require 
that  the  goods  should  be  replaced,  or  he  might  have  his 
action  for  intermeddling  with  his  property.  But  if  the  facts 
were  such  as  to  leave  to  the  owner  only  the  option  between 
receiving  his  goods  or  rejecting  them,  must  he  either  refuse 
the  goods,  or  by  accepting  give  the  carrier  all  the  rights 
which  he  would  have  had  if  he  had  himself  placed  them  in 
the  hands  of  the  carrier  ?  If  a  thief  in  Albany  steals  one  hun- 
dred barrels  of  flour  from  an  owner  who  intends  to  send  it  to 
Boston,  and  the  thief,  for  his  own  purposes,  sends  it  by  rail- 
road to  Boston,  and  there  the  owner's  agent  discovers  the 
flour,  and  recognizes  it  by  marks  and  numbers,  can  the  owner 
or  the  owner's  agent  get  possession  of  the  flour,  only  by 
paying  the  freight,  and  so  discharging  the  lien  of  the  rail- 
road ?  If  a  service  has  been  distinctly  rendered  to  the  owner, 
and  he  accepts  that  service  and  holds  the  benefit  of  it,  on 
general  principles  he  must  pay  for  it.  "Whether  that  rule 
would  apply  here  would  depend  upon  the  peculiar  circum- 
stances of  the  case.  But  if  it  would,  it  does  not  follow  that 
the  carrier  is  entitled  to  his  lien.  He  may  have  a  rightful 
claim  for  freight,  which  he  may  otherwise  enforce,  but  still 
have  no  lien  for  it  on  the  goods  transported.  If  the  lien  be 
connected  with  his  peculiar  obligation  to  carry  for  all  who 
*  offer,  (b)  and  his  peculiar  responsibility  as  an  insurer  against 
every  thing  but  the  act  of  God  or  the  public  enemy,  these 
three,  the  lien,  the  obligation,  and  the  responsibility,  existing 
only  together,  and  in  dependence  on  each  other,  then  it 
would  follow  that  he  has  no  such  lien,  unless  he  was  under 
a  legal  obligation  to  carry  the  goods  for  the  thief.  Such  an 
obligation,  in  the  present  extension  of  our  internal  inter- 
change of  property,  and  with  the  existing  facilities  of  loco- 
motion, would  make  the  common-carrier  the  most  efficient 
assistant  of  the  thief.     We  cannot  doubt  that  he  may  always 

(6)  "The  doctrine  of  lien  originated  nity;  thus  carriers  and  innkeepers  had, 

in  certain  principles  of  the  common  law,  by  the  common  law,  a  lien  on  the  goods 

by  which  a  party,  who  was  compelled  to  intrusted    to    their    charge."      Smith's 

receive  the  goods  of  another,  was  also  Merc.  Law,  558. 
entitled  to  retain  them  for  his  indem- 

[704] 


CH.   XII.] 


BAILMENT. 


-682 


inquire  into  the  title  of  one  who  offers  him  goods ;  that  he 
must  so  inquire  if  there  be  any  facts  which  would  excite  sus- 
picion in  a  man  of  ordinary  intelligence  and  honesty ;  and 
that  if  the  person  offering  the  goods  is  neither  the  owner  nor 
his  authorized  agent,  the  carrier  is  under  no  obligation  to 
receive  and  carry  them.  And  then  again  it  follows,  that  if 
he  carries  goods  for  one  who  is  neither  the  owner  nor  his 
agent,  he  carries  where  he  was  under  no  obligation  to  carry, 
and  therefore  cannot  maintain  his  carrier's  lien  for  the  freight. 
This  conclusion  seems  to  us,  on  the  whole,  most  conform- 
able to  the  -prevailing  principles  of  law,  and  to  the  actual 
condition  of  the  carrier's  business  in  this  country,  and  to  the 
present  weight  of  authority,  (c) 


(c)  This  question  has  been  consider- 
ably discussed  within  the  hist  few  years. 
We  have  ah-eady  seen  that  an  innkeeper 
in  such  a  case  has  a  lien.  See  ante,  p. 
632,  n.  (r.)  See  also  Fitch  v.  Newber- 
ry, 1  Dous-  [Mich.]  1,  where  the  court 
say  :  — "  There  is  an  obvious  ground 
of  distinction  between  the  cases  of  carry- 
ing goods  by  a  common-carrier,  and  the 
furnishing  keeping  for  a  horse  by  an  inn- 
keeper. In  the  latter  case,  it  is  equally 
for  the  benefit  of  the  owner  to  have  his 
horse  fed  by  the  innkeeper,  in  whose 
custody  he  is  placed,  whether  left  by  a 
thief,  or  by  himself  or  agent ;  in  either 
case  food  is  necessary  for  the  preserva- 
tion of  his  horse,  and  the  innkeeper  con- 
fers a  benefit  upon  the  owner  by  feeding 
him.  But  can  it  be  said  that  a  carrier 
confers  a  benefit  on  the  owner  of  goods 
by  carrying  them  to  a  place  where  per- 
haps he  never  designed,  and  does  not 
wish  them  to  go  "?  Or,  as  in  this  case, 
is  the  owner  of  goods  benefited  by  hav- 
ing them  taken  and  transported  by  one 
transportation  line,  at  their  own  price, 
when  he  had  already  hired  and  paid 
another  to  carry  them  at  a  less  price  ?  " 
The  first  case  in  which  the  same  ques- 
tion arose,  in  regard  to  a  carrier,  is  that 
of  the  Exeter  carrier,  cited  by  Lord 
Holt,  in  Yorke  v.  Grenaugh,  2  Lord 
Kaym.  866.  There  it  appeared  that  one 
A.  stole  goods,  and  delivered  them  to 
the  Exeter  carrier  to  be  carried  to  Exe- 
ter. The  right  owner  finding  the  goods 
in  the  possession  of  the  carrier,  demand- 
ed them  of  him  ;  upon  which  the  carrier 
refused  to  deliver,  without  being  paid 


for  the  carnage.  The  owner  brought 
trover,  and  it  was  held  that  the  carrier 
might  justify  detaining  the  goods  against 
the  right  owner  for  the  carriage,  for 
when  A.  brought  them  to  him,  he  was 
obliged  to  receive  them  and  carry  them ; 
and  therefore,  since  the  law  compelled 
him  to  carry  them,  it  would  give  him  a 
remedy  for  the  premium  due  for  the 
carriage.  The  decision  evidently  met 
with  the  approval  of  Lord  Holt.  On 
the  authority  of  this  case,  the  opinion 
seems  generally  to  have  prevailed  in  the 
profession  and  among  text-writers,  that 
innkeepers  and  common-carriers  stand 
upon  the  same  ground  in  this  respect. 
See  King  v.  Richards,  6  Whart.  423. 
But  several  late  cases  seem  to  have  es- 
tablished the  contrary  doctrine,  in  this 
country  at  least,  in  accordance  with 
what  we  have  stated  in  the  text.  The 
first  case,  since  that  of  the  Exeter  car- 
rier, in  which  this  question  has  been 
directly  considered,  is  Fitch  v.  New- 
berry, 1  Doug.  [Mich.]  1,  already  cited. 
The  plaintiff's  in  that  case,  by  their 
agents,  shipped  goods  at  Port  Kent,  on 
Lake  Champlain,  consigned  to  tliem- 
selvcs  at  Marshall,  Michigan,  care  of 
II.  C  &  Co.,  Detroit,  by  the  New  York 
and  Michigan  Line,  who  were  common- 
carriers,  and  with  whom  they  had  pre- 
viously contracted  for  the  traiisporta- 
tion  of  the  goods  to  Detroit,  and  paid 
the  freight  in  advance.  During  their 
transit,  and  before  they  reached  Buffalo, 
the  goods  came  into  the  possession  of 
carriers  doing  business  under  the  name 
of  the   Merchants'   Line,  without    the 

[705] 


683 


THE  LAW   OF   CONTRACTS. 


BOOK  III. 


It   is  settled  that  when  the  carrier  cannot  find  the  con- 
signee, or  learns  that  he  is  a  swindler,  and  would  cheat  the 


knowledge  or  assent  of  the  plaintiffs, 
and  were  by  them  transported  to  De- 
troit, consigned  by  H.  P.  &  C.  of  Buf- 
falo to  the  care  of  the  defendants,  and 
delivered  to  the  defendants,  who  were 
personally  ignorant  of  the  manner  in 
which  they  came  into  the  possession. of 
the  Merchants'  Line,  and  of  the  con- 
tract of  the  plaintiffs  with  the  New 
York  and  Michigan  line,  although  they, 
and  also  H.  P.  &  Co.,  were  agents  for 
and  part  owners  in  the  Merchants'  Line. 
The  defendants,  being  warehouse-men 
and  forwarders,  received  the  goods  and 
advanced  the  freight  upon  them  from 
Troy,  N.  Y.,  to  Detroit.  On  demand 
of  the  goods  by  the  plaintiffs,  the  de- 
fendants refused  to  deliver  them,  until 
the  freight  advanced  by  them,  and  their 
charges  for  receiving  and  storing  the 
goods,  were  paid,  claiming  a  lien  on  the 
goods  for  such  freight  and  charges. 
The  plaintiffs  thereupon  brought  reple- 
vin. And  the  court,  after  much  con- 
sideration, held  that  the  plaintiffs  were 
entitled  to  the  possession  of  the  goods 
without  payment  to  the  defendant  of 
such  freight  and  charges,  and  that  the  de- 
fendants had  no  lien  for  the  same.  This 
decision  is  supported  bv  the  case  of  Van 
Buskirk  v.  Purinton,  2"Hall.  561.  There 
property  was  sold  on  a  condition,  which 
the  buyer  failed  to  comply  with,  and 
shipped  the  goods  on  board  the  defend- 
ant's vessel.  On  the  defendant's  refu- 
sal to  deliver  the  goods  to  the  owner, 
he  brought  trover,  and  was  allowed  to 
recover  the  value,  although  the  defend- 
ant insisted  on  his  right  of  lien  for  the 
freight.  See  also  Collman  v.  Collins,  2 
Hall,  569.  The  same  point  arose  direct- 
ly in  the  late  case  of  Eobinson  v.  Ba- 
ker, 5  Cush.  137,  in  which  Fletcher,  J., 
after  reviewing  and  commenting  upon 
the  authorities  which  we  have  cited, 
says:  —  "Thus  the  case  stands  upon 
direct  and  express  authorities.  How 
does  it  stand  upon  general  principles  1 
In  the  case  of  Saltus  v.  Everett,  20 
AVend.  267,  275,  it  is  said  :  —  '  The 
universal  and  fundamental  principle  of 
our  law  of  personal  property  is,  that  no 
man  can  be  divested  of  his  property 
without  his  consent,  and  consequently 
that  even  the  honest  purchaser  under  a 
defective  title  cannot  hold  against  the 
true  proprietor.'  •  There  is  no  case  to 

[706] 


be  found,  or  any  reason  or  analogy  any- 
where suggested,  in  the  books,  which 
would  go  to  show  that  the  real  owner 
was  concluded,  by  a  bill  of  lading  not 
given  by  himself,  but  by  some  third 
person,  erroneously  or  fraudulently.  If 
the  owner  loses  his  property,  or  is  rob- 
bed of  it.  or  it  is  sold  or  pledged  with- 
out his  consent,  by  one  who  has  only  a 
temporary  right  to  its  use,  by  hiring  or 
otherwise,  or  a  qualified  possession  of 
it  for  a  specific  purpose,  as  for  trans- 
portation, or  for  work  to  be  done  upon 
it,  the  owner  can  follow  and  reclaim  it 
in  the  possession  of  any  person,  how- 
ever innocent.  Upon  this  settled  and 
universal  principle,  that  no  man's  pro- 
perty can  be  taken  from  him  without 
his  consent,  express  or  implied,  the 
books  are  full  of  cases,  many  of  them 
hard  and  distressing  cases,  where  honest 
and  innocent  persons  have  purchased 
goods  of  others,  apparently  the  owners, 
and  often  with  strong  evidence  of  own- 
ership, but  who  yet  were  not  the  own- 
ers, and  the  purchasers  have  been  obliged 
to  surrender  the  goods  to  the  true  own- 
ers, though  wholly  without  remedy  for 
the  money  paid.  There  are  other  hard 
and  distressing  cases  of  advances  made 
honestly  and  fairh'  by  auctioneers  and 
commission  merchants,  upon  a  pledge 
.  of  goods  by  persons  apparently  having 
the  right  to  pledge,  but  who  in  fact  had 
not  any  such  right,  and  the  pledgees 
have  been  subjected  to  the  loss  of  them 
by  the  claim  of  the  rightful  owner. 
These  are  hazards  to  which  persons  in 
business  are  continually  exposed  by  the 
operation  of  this  universal  principle, 
that  a  man's  property  cannot  be  taken 
from  him  without  his  consent.  Why 
should  the  carrier  be  exempt  from  the 
operation  of  this  universal  principle  1 
Why  should  not  the  principle  of  caveat 
emptor  apply  to  him  ?  The  reason,  and 
the  only  reason  given,  is,  that  he  is 
obliged  to  receive  goods  to  carry,  and 
should  therefore  have  a  right  to  detain 
the  goods  for  his  pay.  But  he  is  not 
bound  to  receive  goods  from  a  wrong- 
doer. He  is  bound  only  to  receive 
goods  from  one  who  may  rightfully  de- 
liver them  to  him.  and  "he  can  look  to 
the  title,  as  well  as  persons  in  other  pur- 
suits and  situations  in  life.  Kor  is  a  car- 
rier bound  to  receive  goods,  unless  the 


CH.  XII.] 


BAILSIEXT. 


684 


consignor,  he  is  bound  to  protect  the  owner  and  consignor, 
and  for  that  purpose  to  hold  the  goods,  or  store  them  in  .some 
proper  way  for  his  use.  [d) 

The  carrier  may  also  be  a  factor  to  sell  for  the  owner ;  and 
this  by  express  instructions,  or  by  usage  of  trade,  (e)  When 
this  is  the  case,  after  the  carrier  has  transported  the  goods, 
and  is  engaged  in  his  duty  as  factor  for  sale,  he  is  responsi- 
ble only  as  factor,  or  for  his  negligence  or  default,  and  not  as 
carrier.  But  after  he  has  sold  the  property,  and  has  received 
the  price  which  he  is  to  return  to  the  owner,  his  responsi- 
bility as  a  carrier  revives,  and  in  that  capacity  he  is  liable  for 
any  loss  of  the  money.  (/) 


freight  or  pay  for  the  carriage  is  first 
paid  to  him  ;  and  he  may  in  all  cases 
secure  the  payment  of  the  carriage  in 
advance.  In  the  case  of  King  v.  Rich- 
ards, 6  AYhart.  418,  it  was  decided  that 
a  carrier  may  defend  himself  from  a 
claim  for  goods  by  the  person  who  de- 
livered them  to  him,  on  the  ground  that 
the  bailor  was  not  the  true  owner,  and 
therefore  not  entitled  to  the  goods.  The 
common-carrier  is  responsible  for  the 
•wrong  delivery  of  goods,  though  inno- 
cently done,  upon  a  forged  order. 
Why  should  not  his  obligation  to  re- 
ceive goods  exempt  him  from  the  neces- 
sity of  determining  the  right  of  the  per- 
son to  whom  he  delivers  the  goods,  as 
well  as  from  the  necessity  of  determin- 
ing the  right  of  the  persons  from  whom 
he  receives  the  goods  ?  " 

{d)  Stephenson  v.  Hart,  4  Bing.  476  ; 
DuflFi'.  Budd,  3  Br.  &  Bing.  177. 

(e)  Stone  v.  "Waitt,  31  Maine,  409  ; 
Williams  r.  Nichols,  13  Wend.  58;  The 
Waldo,  Davies,  161. 

(/)  Thus,  where  the  owners  of  a 
steamboat,  which  ran  upon  the  Ohio 
river,  took  produce  to  be  carried  and 
sold  by  them  for  a  certain  freight,  and 
were  bringing  back  in  the  same  vessel 
the  money  which  they  obtained  on  the 
sale  of  the  produce,  when  the  vessel  and 
the  money  were  accidentally  consumed 
by  fire  ;  it  was  held  that  under  the  usage 
of  trade  in  the  western  waters,  they 
were  acting  as  common-carriers  in  go- 
ing, as  factoi-s  in  selling  the  produce, 
and  as  common-carriers  in  bringing 
back  the  money,  and  v.-ere  liable  for  its 
loss,  notwithstanding  the  accident.  Har- 
rington V.  McShane,  2  Watts,  443.  And 


per  Sergeant,  J. :  —  "  The  question  of 
the  defendant's  responsibility  in-  the 
present  case  depends  on  the  character 
in  which  they  held  this  money  when  the 
loss  occurred.  If  they  were  merely  fac- 
tors they  are  not  responsible ;  if  they 
were  carriers,  the  reverse  must  be  the 
case.  Had  the  flour  been  lost  in  the 
descending  voyage,  by  a  similiar  acci- 
dent, there  could  be  no  doubt  what- 
ever of  the  defendant's  liability ;  they 
were  certainly  transporting  it  in  the 
character  of  carriers.  On  their  arrival 
at  the  port  of  destination,  and  landing 
the  flour  there,  this  character  ceased, 
and  the  duty  of  factor  commenced. 
When  the  flour  was  sold,  and  the  spe- 
cific money,  the  proceeds  of  sale,  sepa- 
rated from  other  moneys  in  the  defend- 
ants' hands,  and  set  apart  for  the  plain- 
tiff's, was  on  its  return  to  them  by  the 
same  boat,  the'  character  of  carrier  re- 
attached. The  return  of  the  proceeds 
hy  tlie  same  vessel  is  within  the  scope 
of  the  receipt  and  of  the  usage  of  trade, 
as  proved,  and  the  freight  paid  may  be 
deemed  to  have  been  fixed  with  a  view 
to  the  whole  course  of  the  trade,  em- 
bracing a  reward  for  all  the  duties  of 
transportation,  sale,  and  return.  If  the 
defendants,  instead  of  bringing  the  mo- 
ney home  in  their  own  vessel,  had  sent 
it  on  freight  by  another,  there  would 
have  been  to  the  plaintiffs  tlie  respon- 
sibility of  a  carrier,  and  there  ought  not 
to  be  "less  if  they  chose  to  bring  it  them- 
selves. If  they  had  mixed  the  money 
with  their  own,  they  would  have  no  ex- 
cuse for  non-payment.  The  defendants 
call  be  relieved  from  responsibility  only 
by  holding  that  the  character  of  carrier 

[707] 


68-5-686  ■ 


THE  LAW  OF   CONTRACTS. 


[book  III. 


The  common  principles  of  agency  apply  to  the  carrier;  he 
is  liable  for  the  acts  of  those  whom  he  employs  and  author- 
*izes  to  act  for  him.  But  a  party  may  contract  with  the  ser- 
vant alone,  and  then  can  hold  him  only,  (g) 

The  question,  when  the  carrier  is  liable  beyond  his  own 
route,,  has  been  recently  much  considered,  and  is  not  yet 
quite  settled.  If  carriers  'for  different  routes,  which  connect 
together,  associate  for  the  purpose  of  carrying  parcels  through 
the  whole  line,  and  share  the  profits,  they  are  undoubtedly 
partners,  and  each  is  liable  in  solido  for  the  loss  or  injury  of 
goods  which  he  undertakes  to  carry,  in  whatever  part  of  the 


never  existed  between  these  parties  at 
all,:  or  that,  if  it  existed  on  the  descend- 
ing YOj'age,  it  ceased  at  its  termination, 
and  that  of  factor  began  and  continued 
during  the  ascending  voyage.  But  if 
the  defendants  bring  back  in  the  same 
vessel  other  property,  the  proceeds  of 
the  shipment,  whether  specific  money  or 
goods,  they  do  so  as  carriers,  and  not 
merely  as  factors."  So  where  a  master 
of  a  vessel,  employed  in  the  transporta- 
tion of  goods  between  the  cities  of  Al- 
bany and  New  York,  received  on  board 
a  quantity  of  flour  to  be  earned  to  New 
York,  and  there  sold  in  the  usual  course 
of  such  business  for  the  ordinary  freight ; 
and  tlie  flour  was  sold  by  the  master  at 
New  York  for  cash,  and  while  the  ves- 
sel was  lying  at  the  dock,  the  cabin  was 
broken  open  and  the  money  stolen  out 
of  the  master's  trunk  while  he  and  the 
crew  were  absent ;  it  was  held  that  the 
owners  of  the  vessel  wei-e  answerable 
for  the  money  to  the  shippers  of  the 
flour,  though  no  commissions,  or  a  dis- 
tinct compensation,  beyond  the  freight, 
were  allowed  for  the  sale  of  the  goods 
and  bringing  back  the  money,  such  be- 
ing the  duty  of  the  master,  in  the  usual 
course  of  the  employment,  where  no 
special  instructions  were  given.  Kemp 
V.  Coughtry,  11  Johns.  107.  And,  per 
curiam :  —  "  Had  the  property  which 
was  put  on  board  this  vessel  for  trans- 
portation been  stolen  before  it  was  con- 
verted into  money,  there  could  be  no 
doubt  the  defendants  would  have  been 
responsible.  But  the  character  of  com- 
mon-carrier does  not  cease  upon  the 
sale  of  the  property.  According  to  the 
testimony  in  this  case,  the  sale  of  the 
goods  and  return  of  the  proceeds  to  tho 

[708] 


owner  is  a  part  of  the  duty  attached  to 
the  employment,  where  no  special  in- 
structions are  given.  The  contract  be- 
tween the  parties  is  entire,  and  is  not 
fulfilled  on  the  part  of  the  carrier  until 
he  has  complied  with  his  orders,  or  has 
accounted  with  the  owner  for  the  pro- 
ceeds, or  brought  himself  within  one  of 
the  excepted  cases.  The  sale  in  this 
case  was  actually  made,  and  the  money 
received ;  and  had  it  been  invested  in 
other  property,  to  be  transported  from 
New  York  to  Albany,  there  would  be 
no  question  but  the  character  of  com- 
mon-carrier would  have  continued.  It 
can  make  no  ditfercnc.e  whetlier  the 
return  cargo  is  in  money  or  goods. 
A  person  may  be  a  common-carrier 
of  money,  as  well  as  of  other  pro- 
perty. Carth.  485.  Although  no  com- 
mission or  distinct  compensation  was 
to  be  received  upon  the  money,  yet 
according  to  the  evidence,  it  appears 
to  be  a  part  of  the  duty  attached 
to  the  employment,  and  in  the  usual 
and  ordinary  course  of  the  business,  to 
bring  back  the  money  when  the  cargo 
is  sold  for  cash.  The  freight  of  the 
cargo  is  the  compensation  for  the 
whole  ;  it  is  one  entire  concern.  And 
the  suit  may  be  brought  against  the 
owners  of  the  vessel.  The  master  is 
considered  their  agent  or  servant,  and 
they  are  responsible  for  the  faithful  dis- 
charge of  his  trust."  See  also  Tavlor 
V.  Wells,  3  Watts,  65  ;  Emery  v.  Her- 
sey,  4  Greenl.  407.  —  It  should  be  ob- 
served, however,  that  Mr.  Justice  Story 
has  made  some  strictures  upon  the  case 
of  Kemp  V.  Coughtry,  for  which  see 
Story  on  Bailm.  §§  547,  548. 
(y)  See  ante,  p.  656,  n.  (h.) 


CH.   XII.] 


BAILMENT. 


687 


line  it  may  have  happened.  (A)  If  the  carriers  be  not  so  dis- 
tinctly associated,  but  are  so  far  connected  that  they  under- 
take, or  authorize  the  public  to  suppose  that  they  undertake, 
for  the  whole  line,  they  should  be  responsible  as  before,  (i) 
But  undoubtedly  a  carrier  may  receive  a  parcel  to  carry  as 
far  as  he  goes,  and  then  to  send  it  farther  by  another  carrier. 
And  where  this  is  clearly  the  case,  his  responsibilities  as  car- 
rier and  as  forwarder  are  entirely  distinct,  (J)  The  dilUculty 
is  in  determining  between  these  cases  ;  and  the  present 
weight  of  authority  seems  in  favor  of  the  rule,  that  a  carrier 
who  knowingly  receives  a  parcel  directed  or  consigned  to 
any  particular  place,  undertakes  to  carry  it  there  himself, 
unless  -he  makes  known  a  different  purpose  and  undertaking 
*  to  the  owner,  (k)     But  this  is  still  only  a  primd  facie  pre- 


(h)  Thus,  where  A.  and  B.  were 
jointly  interested  in  the  profits  of  a 
common  stage-wagon,  but,  by  a  private 
agreement  ijctween  themselves,  each 
undertook  the  conducting  and  manage- 
ment of  the  wagon,  with  his  own  dri- 
vers and  horses,  for  specified  distances ; 
it  was  held,  notwithstanding  this  private 
agreement,  that  they  were  jointly  re- 
sponsible to  tliird  persons  for  the  neg- 
ligence of  their  drivers  throughout  the 
whole  distance.  Waland  ii.  Elkins,  1 
Stark.  272 ;  s.  c.  nom.  Wcyland  v.  El- 
kins, Holt,  N.  P.  227.  See  also  Fro- 
mont  I'.  Conpland,  2  Bing.  170;  Ilels- 
by  V.  Mears,  5  B.  &  C.  504.  So  where 
an  association  was  formed  between  ship- 
pers, on  Lake  Ontario,  and  the  owners 
of  canal  boats  on  the  Erie  Canal,  for 
the  transportation  of  goods  and  mer- 
chandise between  the  city  of  New  York 
and  the  ports  and  places  on  Lake  On- 
tario and  the  llivcr  St.  Lawrence,  and 
a  contract  was  entered  into  by  the  agent 
of  such  association,  for  the  transporta- 
tion of  goods  from  the  city  of  New 
York  to  Ogdensburg,  on  the  River  St. 
Lawrence,  and  the  goods  were  lost  on 
Lake  Ontario  ;  it  was  held,  that  all  the 
defendants  were  answerable  for  the  loss, 
although  some  of  them  had  no  interest 
in  the  vessel  navigating  the  lake,  in 
which  the  goods  were  shipped.  Fair- 
child  V.  Slocum,  19  Wend.  329,  7  Hill, 
292. 

(t)  Weed  V.  The  S.  &  S.  Railroad 
Co.  19  Wend.  534. 

(j)  Garsidc  u.  Trent  and  Mersey  Na- 

VOL.  I.  60 


vigation  Co.  4  T.  R.  581  ;    Ackley  v. 
Kellogg,  8  Cow.  223. 

(k)  The  leading  case  upon  this  point 
is  Muschamp  v.  The  L.  &  P.  Junction 
Railway  Co.,  8  M.  &  W.  421.  The  de- 
fendants were  the  proprietors  of  the 
Lancaster  and  Preston  Junction  Rail- 
way, and  carried  on  business  on  their 
line  between  Lancaster  and  Preston,  as 
common-carriers.  At  Preston,  the  de- 
fendants' line  joined  that  of  the  North 
Union  Railway.  The  plaintiff,  a  stone 
mason,  living  at  Lancaster,  had  gone 
into  Derbyshire  in  search  of  work,  leav- 
ing his  box  of  tools  to  be  sent  after  him. 
His  mother  accordingly  took  the  box  to 
the  railway  station  at  Lancaster,  di- 
rected to  the  plaintiff  at  a  ])lacc  beyond 
Preston,  in  Derbyshire,  and  retjuested 
the  clerk  at  the  station  to  book  it.  She 
offered  to  pay  the  carriage  in  advance 
for  the  whole  distance,  but  was  told  by 
the  clerk  that  it  had  better  be  paid  at  the 
place  of  delivery.  It  appeared  that  the 
box  arrived  safely  at  Preston,  but  was 
lost  after  it  was  despatched  from  thence 
by  the  North  Union  Railway.  The 
plaintiff  brought  this  action  to  recover 
ibr  tlie  loss  of  the  box.  Uolfe,  B., 
before  whom  the  cause  was  tried,  stated 
to  the  jury,  in  summing  up.  tliat  where 
a  conmion-carrrier  takes  into  his  care  a 
parcel  directed  to  a  particular  place, 
and  docs  not  hy  i)ositivc  agivemcnt 
limit  his  responsibility  to  a  part  only 
of  the  distance,  that  is  jirimd  facie  evi- 
dence of  an  undertaking  to  carry  the- 
parcel  to  the  place  to  which  it  is  dircct- 
[709] 


-687  THE   LAW   OF    CONTRACTS.  [BOOK    III. 

sumption,  to  be  rebutted  by  any  circumstances  which  will 


ed ;  and  that  the  same  rule  applied, 
although  that  place  were  beyond  the 
limits  within  which  he  in  general  pro- 
fessed to  carry  on  his  trade  of  a  carrier. 
On  a  motion  for  a  new  trial,  the  Court 
of  Exchequer  held  the  instruction  to  he 
correct.  Lord  Ahinger  said:  —  "It  is 
admitted  by  the  defendants'  counsel, 
that  the  defendants  contract  to  do  some- 
thing more  with  the  parcel  than  merely 
to  carry  it  to  Preston  ;  they  say  the  en- 
gagement is  to  carry  to  Preston,  and 
there  to  deliver  it  to  an  agent,  who  is  to 
carry  it  further,  wlio  is  afterwards  to  be 
replaced  by  another,  and  so  on  until  the 
end  of  the  journey.  Now  that  is  a  very 
elaborate  kind  of  contract ;  it  is  in  sub- 
stance giving  to  the  carriers  a  general 
power,  along  the  whole  line  of  route,  to 
make  at  their  pleasure  fresh  contracts, 
M'hich  shall  be  binding  upon  the  princi- 
pal who  employed  them.  But  if,  as  it 
is  admitted  on  both  sides,  it  is  clear  that 
something  more  was  meant  to  be  done 
by  the  defendants  than  carrying  as  far 
as  Preston,  is  it  not  for  the  jury  to  say 
what  is  the  contract,  and  how  much  more 
was  undertaken  to  be  done  by  them  9 
Now,  it  certainly  might  be  true  that  the 
contract  between  these  parties  was  such 
as  that  suggested  by  the  counsel  for  the 
defendants ;  but  otiier  views  of  the  case 
may  be  suggested  quite  as  probable ; 
such,  for  instance,  as  that  these  rail- 
way companies,  though  separate  in 
themselves,  are  in  the  habit,  for  their 
own  advantage,  of  making  contracts,  of 
which  this  was  one,  to  convey  goods 
along  the  whole  line,  to  the  ultimate 
terminus,  each  of  them  being  agents  of 
the  other  to  carry  them  forward,  and 
each  receiving  their  share  of  the  profits 
from  the  last.  The  fact  that,  according 
to  the  agreement  proved,  the  carriage 
was  to  be  paid  at  the  end  of  the  journey, 
ratlicr  confirms  the  notion  that  the  per- 
sons who  were  to  carry  the  goods  from 
Preston  to  their  final  destination  were 
under  the  control  of  the  defendants,  who 
consequently  exercised  some  influence 
and  agency  beyond  the  immediate  ter- 
minus of  their  own  railway.  Is  it  not 
then  a  question  for  the  jury  to  say  what 
the  nature  of  this  contract  was  ;  and  is 
it  not  as  reasonable  an  inference  for 
them  to  draw,  that  the  whole  was  one 
^contract,  as  the  contrary  ?  I  hardly 
think  tliey  would  be  likely  to  infer  so 

[710] 


elaborate  a  contract  as  that  which  the 
defendants'  counsel  suggest,  namely, 
that  as  the  line  of  the  defendants'  rail- 
way terminates  at  Preston,  it  is  to  be 
presumed  that  the  plaintiff,  who  intrust- 
ed the  goods  to  them,  made  it  part  of 
his  bargain  that  they  should  employ  for 
him  a  fresh  agent  both  at  that  place  and 
at  every  subsequent  change  of  railway 
or  conveyance,  and  on  each  shifting  of 
the  goods  give  such  a  document  to  the 
new  agent  as  should  render  him  respon- 
sible. Suppose  the  owner  of  goods 
sent  under  such  circumstances,  when 
he  finds  they  do  not  come  to  hand, 
comes  to  the  railway  office  and  makes 
a  complaint,  then,  if  the  defendants' 
argument  in  this  case  be  well  founded, 
unless  the  railway  company  refuse  to 
supply  him  with  the  name  of  the  new 
agent,  they  break  their  contract.  It  is 
true  that,  practically,  it  might  make  no 
great  difference  to  the  proprietor  of  the 
goods  which  was  the  real  contract,  if 
their  not  immediately  furnishing  him 
with  a  name  would  entitle  him  to  bring 
an  action  against  them.  But  the  ques- 
tion is,  why  should  the  jury  infer  one  of 
these  contracts  rather  than  the  other  ? 
Which  of  the  two  is  the  most  natural, 
the  most  usual,  the  most  probable  ?  Be- 
sides, the  carriage-money,  being  in  this 
case  one  undivided  sum,  rather  sup- 
ports the  inference  that  although  these 
carriers  cany  only  a  certain  distance 
with  their  own  vehicles,  they  make  sub- 
ordinate contracts  with  the  other  car- 
riers, and  are  pai'tners  inter  se  as  to  the 
caiTiage-money  ;  a  fact  of  which  the 
owner  of  the  goods  could  know  nothing, 
as  he  only  pays  the  one  entire  sum  at 
the  end  of  the  journey,  which  they  after- 
wards divide  as  they  please.  Not  only, 
therefore,  is  there  somfe  evidence  of  this 
being  the  nature  of  the  contract,  but  it 
is  the  most  likely  contract  under  the 
circumstances ;  for  it  is  admitted  that 
the  defendants  undertook  to  do  more 
than  simply  to  carry  the  goods  from 
Lancaster  to  Preston.  The  whole  mat- 
ter is  therefore  a  question  for  the  jury, 
to  determine  what  the  contract  was,  on 
the  evidence  before  them.  ...  In 
cases  like  the  present,  particular  cir- 
cumstances might  no  doubt  be  adduced 
to  rebut  the  inference  which  prima  facie 
must  be  made  of  the  defendants'  having 
undertaken  to  carrv  the  goods  the  whole 


CH.   XII.] 


BAILMENT. 


688 


show  that  the  owner  understood,  or  ought  to  have  under- 
stood, the  carrier,  differently.  (/) 


way.  The  taking  charge  of  the  parcel 
is  not  put  as  conclusive  evidence  of  the 
contract  sued  on  by  the  plaintiff;  it  is 
only  prima  facie  evidence  of  it ;  and  it 
is  useful  and  reasonable  for  the  benefit 
of  the  public  that  it  is  should  be  so  con- 
sidered. It  is  better  that  those  who  un- 
dertake the  carriage  of  parcels,  for  their 
mutual  benefit,  should  arrange  matters 
of  this  kind  inter  se,  and  should  be 
taken  each  to  have  made  the  others 
their  agents  to  carry  forward."  This 
case  is  fully  approved  and  confirmed  by 
the  late  case  of  Watson  v.  The  A.,  N-, 
&  B.  Railway  Co.,  3  E.  L.  &  E.  497,  in 
the  Queen's  Bench.  That  was  an  action 
for  the  recovery  of  damages  sustained 
by  the  plaintift",  by  reason  of  the  non- 
delivery, in  proper  time,  of  plans  and 
models  sent  by  him  from  Grantham  to 
Cardiff.  The  defendants'  railway  ex- 
tended only  as  far  as  Kottingham, 
where  it  was  joined  by  another  rail- 
way, which  was  continued  to  Bristol. 
It  appeared  that  a  person  of  the  name 
of  Chevins  had  been  appointed  by  the 
defendants  as  their  station-master  at 
Grantham,  to  receive  and  deliver  par- 
cels to  be  sent  by  the  railway  from 
that  place,  and  that  in  such  capacity 
he  had  received  the  package  in  ques- 
tion, which  was  directed  to  Cardiff; 
and  there  was  some  evidence  to  show 
that  Chevins  had  told  the  plaintiff  tiiat 
the  package  would  arrive  at  Cardiff 
in  time.  The  station-master  had  said, 
when  the  package  was  delivered  to 
him,  that  he  could  receive  payment  for 
it  only  so  far  as  Nottingham,  as  he 
had  no  rates  of  payment  beyond ;  and 
thereupon  the  words  on  the  package, 
"paid  to  Bristol,"  were  erased,  and  the 
words,  '•  paid  to  Nottingham,"  sul)sti- 
tuted  by  Chevins,  but  this  was  done 
without  the  knowledge  of  the  plaintiff, 
and  the  original  direction  was  left  on 
the  package,  which,  being  detained  at 
Bristol,  did  not  arrive  at  Cardiff  in  due 
time.  The  court  Iield  that  the  defend- 
ants were  liable.  Patteson,  J.,  said:  — 
"  The  case  of  Muschamp  v.  The  Lan- 
caster and  Preston  Junction  Railway 
Co.  is  directly  in  point;  and  if  carriers 
receive  a  package  to  carry  to  a  particu- ' 


lar  place,  whether  they  themselves  carry 
it  all  the  way  or  not,' they  must  be  said 
to  have  the  conveying  of"  it  to  the  end 
of  the  journey,  and  the  other  parties 
to  whom  they  may  hand  it  over  are 
their  agents.  "Wc  must  adhere  to  this 
principle,  and  the  company  arc  clearly 
liable,  unless  the  facts  show  that  their 
responsibility  has  determined.  Their 
not  having  taken  the  amount  of  the  car- 
riage is  immaterial,  and  is  explained  by 
the  fact  of  their  not  knowing  what  that 
amount  would  be.  Chevins  appears  to 
have  been  the  agent  of  the  defendants  ; 
he  receives  the  parcel  to  carry  it  to  Car- 
diff, and  makes  out  an  invoice,  which 
the  defendants  have  refused  to  produce. 
Now.  putting  these  circumstances  to- 
gether, there  is  abundant  evidence  that 
they  contracted  to  carry  the  package  to 
Cardiff,  and  they  were  guilty  of  negli- 
gence in  detaining  it  at  Bristol."  And 
Y>ev  Erie,  J.:  —  "The  first  question  is, 
whether  there  is  any  evidence  of  the 
defendants  having  contracted;  and  I 
think  the  person  to  whom  the  package 
was  delivered  must  be  taken  to  be  the 
agent  of  the  company.  Then,  having 
received  a  parcel  to  be  conveyed  to  Car- 
diff, when  their  line  only  extends  to 
Nottingham,  do  they  make  themselves 
liable  for  its  carriage  beyond  tlieir  own 
line  1  This  question  was  much  con- 
sidered in  Muschamp  v.  The  Lancaster 
and  Preston  Junction  Railway  Co.,  and 
I  think  it  was  there  properly  decided, 
that  where  goods  are  received  at  one 
terminus  for  conveyance  to  another,  the 
company  are  answerable  for  all  the  in- 
termediate termini,  and  the  receipt  of 
such  goods  is  prima  facie  evidence  of 
such  liability."  The  same  doctrine 
was  declared  by  the  Supreme  Court  of 
New  York,  in  the  case  of  St.  John  v^ 
Van  Santvoord,  2.")  Wend.  CGO.  But 
their  judgment  in  that  case  was  reversed 
by  the  Court  for  tiie  Correction  of  Er- 
rors. See  6  Hill,  157.  The  English 
rule  is  said  also  to  have  been  adopted 
in  Bennett  v.  Filyaw,  1  Florida,  403. 
See  Ang.  Com.  Car.  100.  A  somewhat 
similar  question  arose  in  the  late  case 
of  Wilcox  I'.  Parmelcc,  3  Sandf.  610. 
There   the   plaintiff  purchased   in   the 


(/)  See  Fowles  v.  Great  Western  Railway  Co. 
cedmg  note. 


16  E.  L.  &  E.  531,  and  pre- 
[711] 


689 


THE   LAW    OF   CONTRACTS. 


[book   III. 


How  far  the  carrier  can  lessen  his  responsibility  by  his 
own  acts,  and  especially  by  notices  defining  or  entirely  with- 


city  of  New  York  a  quantity  of  mer- 
chandise, which  the  defendant  under- 
took to  forward  from  thence  to  Fair- 
port,  Ohio,  by  a  written  agreement,  for 
fifty  cents  by  vessel,  and  sixty-five  cents 
per  100  lbs.  by  steam.  Tliose  goods 
marked  "steam,"  to  go  by  steam,  all 
other  goods  "  to  be  shipped  by  vessel 
from  Buffalo."  Certain  goods  were 
marked  to  go  by  steam,  but  they  were 
sent  forward  from  Buflfiilo  in  a  sailing 
vessel,  and  were  lost  in  a  gale  on  Lake 
Erie.  It  appeared  that  the  defendant 
owned  a  line  of  boats  on  the  canal  be- 
tween Albany  and  Buffiilo,  but  that  he 
had  no  vessels  on  Lake  Erie.  Held, 
that  the  defendant,  by  the  terms  of  his 
contract,  was  a  common- carrier,  from 
New  York  to  Fairport,  and  not  merely 
on  the  canal ;  and  that  lie  was  liable  for 
the  loss. — The  English  rule  is  condemn- 
ed in  very  strong  terms  by  Mr.  Justice 
Red/ield,  "in  the  case  of  Farmers'  and 
Mechanics'  Bank  v.  Champlain  Trans- 
portation Co.  23  Verm.  186,  209.  In 
speaking  of  the  obligation  of  the  carrier 
to  make  a  personal  delivery,  the  learned 
judge  says  :  —  "  There  has  been  an  at- 
tempt to  push  one  department  of  the 
law  of  carriers  into  an  absurd  extreme, 
as  it  seems  to  us,  by  a  misapplication 
of  this  rule  of  the  carrier  being  bound 
to  make  a  personal  delivery.  That  is, 
by  holding  the  first  carrier,  upon  a  route 
consisting  of  a  succession  of  carriers, 
liable  for  the  safe  delivery  of  all  articles 
at  their  ultimate  destination.  Mus- 
champ  V.  The  L.  &  P.  Railway  Co.  8 
M.  &  W.  421,  is  the  only  English  case 
much  relied  upon  in  favor  of  any  such 
proposition,  and  that  case  is,  by  tlie 
court,  put  upon  the  ground  of  the  par- 
ticular contract  in  the  case  ;  and  also, 
that  'All  convenience  is'  in  favor  of 
such  a  rule.  "  and  there  is  no  authority 
against  it,'  as  said  by  Baron  Eolfe,  in 
giving  judgment.  St.  John  v.  Van 
Santvoord,  25  Wend.  660,  assumed 
similar  ground.  But  this  court,  in  this 
same  case,  (16  Verm.  52,)  did  not  con- 
sider that  decision  as  sound  law,  or 
good  sense ;  and  it  has  since  been  re- 
versed in  the  Court  of  Errors,  Van 
Santvoord  r.  St.  John,  6  Hill,  158,  and 
this  last  decision  is  expressly  recog- 
nized by  this  court,  18  Verm.  131.  Weed 
V.  Schenect.  &   Sar.   Railroad   Co.  19 

[712] 


Wend.  534,  is  considered,  by  many,  as 
having  adopted  the  same  view  of  the 
subject.  But  that  case  is  readily  recon- 
ciled with  the  general  rule  upon  this 
subject,  that  each  carrier  is  only  bound 
to  the  end  of  his  own  route,  and  for  a 
delivery  to  the  next  carrier,  by  the  con- 
sideration that  in  this  case  there  was  a 
kind  of  partnership  connection  between 
the  first  company  and  the  other  com- 
panies, constituting  the  entire  route,  and 
also  that  the  first  carriers  took  pay  and 
gave  a  ticket  through,  which  is  most 
relied  upon  by  the  court.  But  see  opi- 
nion of  Walworth,  Ch.,  in  Van  Sant- 
voord V.  St.  John,  6  Hill,  158.  And  in 
such  cases,  where  the  first  company 
gives  a  ticket  and  takes  pay  through,  it 
may  be  fairly  considered  equivalent 
to  an  undertaking  to  be  responsible 
thi-oughout  the  entire  route.  The  case 
of  Bennett  v.  Filyaw,  1  Florida,  403, 
is  referred  to  in  Angell  on  Carriers, 
§  95,  note  1,  as  favoring  this  view  of 
the  subject.  The  rule  laid  down  in 
Garside  v.  Trent  and  Mersey  Nav.  Co. 
4  T.  R.  581,  that  each  carrier,  in  the 
absence  of  special  contract,  is  only 
liable  for  the  extent  of  his  own  route,  and 
the  safe  storage  and  delivery  to  the 
next  carrier,  is  undoubtedly  the  better, 
the  more  just  and  rational,  and  the 
more  generally  recognized  rule  upon 
the  subject.  Ackley  v.  Kellogg,  8  Cow. 
223.  This  is  the  case  of  goods  carried 
by  water  from  New  York  to  Troy,  to 
be  put  on  board  a  canal  boat  at  that 
place,  and  forwarded  to  the  north,  and 
the  goods  were  lost,  by  the  upsetting  of 
the  canal  boat,  and  the  defendants  were 
held  not  liable  for  the  loss  beyond  their 
own  route.  The  cases  all  seem  to  re- 
gard this  as  the  general  rule  upon  this 
subject,  with  the  exception  of  those 
above  referred  to;  one  of  which  (8  M. 
&  W.  421)  considers  it  chiefly  a  matter 
of  fact,  to  be  determined  by  the  jury  as 
to  the  extent  of  the  undertaking ;  one 
(25  Wend.  660)  has  been  disregarded 
by  this  court,  and  reversed  by  their  own 
Court  of  Errors,  (6  Hill,  158) ;  one  (19 
Wend.  534)  is  the  case  of  ticketing 
through,  upon  connected  lines ;  and 
one  (1  Florida,  403)  I  have  not  seen." 
See  also  on  this  subject,  Fowles  v.  Great 
Western  Railway  Co.  16  E.  L.  &  E.  531 ; 
Scotthorn  v.  South  Staffordshire  Rail- 


CH.   XII.]  BAILMENT.  690 

drawing  his  liability,  has  been  much  disputed.  As  much  the 
greater  part  of  the  cases  in  which  this  question  occurs,  or  is 
likely  to  occur,  is  in  relation  to  the  property  of  passengers, 
we  will  consider  this  question  under  our  next  topic,  namely. 


SECTION  XIII. 

COMMON-CAKRIERS  OF  PASSENGERS. 

The  carrier  of  passengers  is  not  liable  for  them  in  the 
same  way  in  which  the  carrier  of  goods  is  liable.  The  rule, 
the  exception,  the  limitation  of  the  exception  and  reason  of 
it,  are  now  all  perfectly  well  settled.  By  the  general  rule, 
the  liability  of  the  common-carrier  does  not  depend  upon  his 
negligence,  because  h^  insures  the  owners  of  all  the  goods  he 
carries  against  all  loss  or  injury  that  does  not  come  from  the 
act  of  God  or  the  public  enemy.  The  exception  to  this,  in 
the  case  of  the  carrier  of  passengers,  is,  that  he  is  liable  only 
where  the  injury  has  arisen  from  his  own  negligence;  and 
the  limitation  to  this  exception  is,  that  he  is  thus  liable  for 
injuries  resulting  from  the  slightest  negligence  on  his  part,  (m) 

way  Co.  18  E.  L.  &  E.  553 ;  Wilson  v.  Justice  Eyre  in  the  case  of  Aston  r. 
York,  Newcastle  &  Berwick  Railway  Heavan,  2  Esp.  533.  That  was  an  ac- 
Co.  Ibid.  557  ;  Walker  v.  York  &  Nortli  tion  against  the  defendants,  as  jjroprie- 
Midland  Railway  Co.,  22  E.  L.  &E.315 ;  tors  of  a  stage-coach,  to  recover  dama- 
Hellal)y  y.  Weaver,  17  Law  Times  Reps,  ges  received  by  the  plaintiff  in  consc- 
In  the  case  of  Hood  v.  New  York  &  quencc  of  the  upsetting  of  the  defend- 
New  Haven  Railroad  Co.,  22  Conn.  1,  ants'  coach.  The  defence  relied  upon 
s.  c.  22  Conn.  502,  it  was  held  that  the  was,  that  the  coach  was  driving  at  a  re- 
corporate  power  of  a  railroad  did  not  gular  pace  on  the  Hammersmith  road, 
extend  to  a  contract  for  tlio  carriage  of  but  that  on  the  side  was  a  puui])  of  con- 
a  person  by  staging  be3'ond  their  own  siderable  height,  from  whence  the  water 
length  of  road,  and  that  the  fact  that  was  falling  into  a  tub  below ;  tiiat  the 
they  had  been  for  a  long  time  in  the  sun  shone  brightly,  and  being  rellccted 
habit  of  making  and  executing  such  strongly  from  the  water,  the  liorses  had 
contracts,  could  not  estop  them  from  taken  fright  and  run  against  the  bank 
setting  up  this  lack  of  power  when  sued  at  the  opposite  side,  where  the  coach 
by  a  person  to  whom  they  had  given  a  was  overset.  And  per  Ej/>e,  C.  J. :  — 
ticket  for  conveyance  beyond  their  line  "  This  action  is  founded  entirely  in  neg- 
of  route,  and  who  was  injured  on  such  ligence.  It  has  been  said  by  the  coun- 
passage.  sel  for  the  plaintiff,  that  wherever  a  case 
(/«)  Derwort  v.  Loonier,  21  Conn,  happens,  even  where  tiiere  has  been  no 
246  ;  Fuller  v.  Naugatuck  Railroad  Co.  negligence,  he  wouUl  take  tiie  opinion 
lb.  558;  Caldwell  v.  Murphy,  1  Duer,  of  the  court  whether  defendants  circum- 
233 ;  liegeman  v.  Western  Railroad  stanced  as  the  present,  tiiat  is,  coach 
Corp.  16  Barb.  353.  This  was  ver}'  owners,  should  not  be  liable  in'all  cases, 
authoritatively  declared  by  Lord  Chief  except  where  the  injury  happens  from 

60*  [713] 


691  THE   LAW   OF   CONTEACTS.  [BOOK  III. 

Whether  he  is  thus  liable  to  a  passenger  to  whom  he  has 


the  net  of  God  or  the  king's  enemies. 
I  am  of  opinion  the  cases  of  the  loss  of 
goods  by  carriers  and  the  present,  are 
totally  unlike.  When  that  case  does 
occur,  he  will  be  told  tliat  carriers  of 
goods  are  liable  by  the  custom,  to  guard 
against  frauds  they  might  be  tempted  to 
commit  by  taking  goods  intrusted  to 
them  to  carry,  and  then  pretending  they 
had  lost  or  been  robbed  of  them  :  and 
because  they  can  protect  themselves ; 
but  there  is  no  such  rule  in  the  case  of 
the  carriage  of  the  persons.  This  ac- 
tion stands  on  the  ground  of  negligence 
only."  To  the  same  effect  is  the  ruling 
of  Sir  James  Mansfield  in  Christie  v. 
Griggs,  2  Camp.  79.  That  was  an 
action  of  assumpsit  against  the  defend- 
ant as  owner  of  the  Blackwall  stage,  on 
which  the  plaintiff",  a  pilot,  was  tra- 
velling to  London,  when  it  broke  down 
and  he  was  greatly  bruised.  The  first 
count  imputed  the  accident  to  tlie  negli- 
gence of  the  driver ;  the  second  to  the 
insufficiency  of  the  axletree  of  the  car- 
riage. The  defendant  introduced  evi- 
dence to  show  that  the  axletree  had 
been  examined  a  few  days  before  it 
broke,  without  any  flaw  being  dis- 
covered in  it;  and  that  when  the  acci- 
dent happened,  the  coachman,  a  very 
skilful  driver,  was  driving  in  the  usual 
track,  and  at  a  moderate  pace.  And, 
per  Maitsfield,  C.  J.,  in  summing  up  to 
the  jury:  — "  As  the  driver  has  been 
cleared  of  every  thing  like  negligence, 
the  question  for  the  jury  will  be  as  to 
the  sufficiency  of  the  coach.  If  the 
axletree  was  sound,  as  far  as  human 
eye  could  discover,  the  defendant  is  not 
liable.  There  is  a  diff'erence  between  a 
contract  to  carry  goods  and  a  contract 
to  carry  passengers.  For  the  goods  the 
carrier  is  answerable  at  all  events.  But 
he  does  not  warrant  the  safety  of  the 
passengers.  His  undertaking  as  to 
them  goes  no  flirthcr  than  this,  that  as 
far  as  human  care  and  foresight  can  go 
he  will  provide  for  their  safe  convey- 
ance. Therefore,  if  the  breaking  down 
of  the  coach  was  purely  accidental,  the 
plaintiff  has  no  remedy  for  the  misfor- 
tune he  has  encountered."  See  also 
Harris  r.  Costar,  1  C.  &  P.  636  ;  White 
V.  Boulton,  Peakc's  Cas.  81  ;  Crofts  v. 
Waterhouse,  3  Bing.  319.  Such  also 
has  been  repeatedly  declared  to  be  the 
law  in  this  country.     Thus,  in  the  case 

[714] 


of  Dcrwort  v.  Loomcr,  21  Conn.  245, 
one  of  the  latest  cases  on  this  subject, 
Ellsworth,  J.,  says  :  —  "  The  rule  of  law 
on  this  subject  is  fully  established  in 
our  own  courts  and  elsewhere,  and  is 
not  controverted  by  the  learned  counsel, 
in  this  case.  The  principle  is  that  in 
the  case  of  common  carriers  of  passen- 
gers, the  highest  degree  of  care  which 
a  reasonable  man  would  use,  is  re- 
quired. This  rule  applies  alike  to  the 
character  of  the  vehicle,  the  horses  and 
harness,  the  skill  and  sobriety  of  the 
driver,  and  to  the  manner  of  conducting 
the  stage  under  every  emergency  or 
difficulty.  The  driver  must,  of  course, 
be  attentive  and  watchful.  He  has,  for 
the  time  being,  committed  to  his  trust, 
the  safety  and  lives  of  people,  old  and 
young,  women  and  children,  locked  up 
as  it  were  in  the  coach  or  rail-car,  igno- 
rant, helpless,  and  having  no  eyes,  or 
ears,  or  power  to  guard  against  dangers, 
and  who  look  to  him  for  safety  in  their 
transportation.  The  contract  to  carry 
passengers  differs,  it  is  true,  from  a 
contract  to  carry  freight;  but  in  both 
cases  the  rule  is  rigorous  and  impera- 
tive ;  in  the  latter  the  carrier  is  answer- 
able at  all  events  except  for  the  act  of 
God  and  the  public  enemy ;  while  in 
the  former  the  most  perfect  care  of  pru- 
dent and  cautious  men  is  demanded 
and  required.  The  stage-owner  does 
not  warrant  the  safety  of  passengers  ; 
yet  his  undertaking  and  liability  as  to 
them  go  to  this  extent,  that  he  or  his 
agent  shall  possess  competent  skill,  and 
that  as  far  as  human  foresight  and  care 
can  reasonably  go,  he  will  transport 
them  safely.  He  is  not  liable  for  inju- 
ries happening  to  passengers,  from 
sheer  accident  or  misfortune,  where 
there  is  no  negligence  or  fault,  and 
where  no  want  of  caution,  foresight,  or 
judgment  would  prevent  the  injury. 
But  he  is  liable  for  the  smallest  negli- 
gence in  himself  or  his  driver."  See 
also  Fuller  v.  The  Naugatuck  Railroad 
Co.,  21  Conn.  557  ;  Hall  i'.  Conn.  River 
Steamboat  Co.,  13  Conn.  319;  McKin- 
ney  v.  Neil,  1  McLean,  540 ;  Maury  v. 
Talmadge,  2  McLean,  157  ;  Stokes  v. 
Saltonstall,  13  Pet.  181  ;  Stockton  r. 
Frey,  4  Gill,  406 ;  Camden  &  Amboy 
R.  R.  Co.  V.  Burke,  13  Wend.  626  ;  Hol- 
lister  V.  Xowlen,  19  Wend.  236.— In  the 
case  of  Boyce  v.  Anderson,  2  Pet.  150, 


CH.   XII.]  BAILMENT.  692 

given  passage,  and  from  whom  he  has  therefore  no  right  to  de- 


the  question  arose  whether  the  rule  ap- 
plicable to  the  carriage  of  goods  or  that 
applicable  to  the  carriage  of  passengers 
should  be  applied  to  the  case  of  negro 
slaves.  That  was  an  action  brought  by 
the  owner  of  slaves,  against  the  propri- 
etor of  a  steamboat,  on  the  Mississippi, 
to  recover  damages  for  the  loss  of  the 
slaves,  alleged  to  have  been  caused  by 
the  negligence  or  mismanagement  of 
the  captain  and  commandant  of  the 
boat.  The  case  came  up  on  error  from 
the  Circuit  Court  for  the  District  of 
Kentuclcy.  The  court  below  instructed 
the  jury,  among  other  things,  "  that  the 
doctrine  of  common-carriers  did  not 
apply  to  the  case  of  carrying  intelligent 
beings,  such  as  negroes ; "  and  the  Su- 
preme Court  held  this  instruction  to  be 
correct.  Marshall,  C.  J.,  said,  "  There 
being  no  special  contract  between  the 
parties  in  this  case,  the  principal  ques- 
tion arises  on  the  opinion  expressed  by 
the  court,  '  that  the  doctrine  of  common- 
carriers  does  not  apply  to  the  case  of 
carrying  intelligent  beings  such  as 
negroes.'  That  doctrine  is,  that  tlie 
carrier  is  responsible  for  every  loss 
which  is  not  produced  by  inevitable 
accident.  It  has  been  pressed  beyond 
the  general  principles  which  govern  the 
law  of  bailment,  by  considerations  of 
policy.  Can  a  sound  distinction  be 
taken  between  a  human  being  in  whose 
person  another  has  an  interest,  and  in- 
animate property  1  A  slave  has  voli- 
tion and  has  feelings  which  cannot  be 
entirely  disregarded.  Tiiese  properties 
cannot  be  overlooked  in  conveying  him 
from  place  to  place.  Ho  cannot  be 
stowed  away  as  a  common  package. 
Not  only  docs  humanity  forbid  this 
proceeding,  but  it  might  endanger  his 
life  or  health.  Consequently  this  rigor- 
ous mode  of  proceeding  cannot  safely 
be  adopted,  unless  stipulated  for  by 
special  contract.  Being  left  at  liberty, 
he  ma}'  escape.  Tiie  carrier  has  not 
and  cannot  have  the  same  absolute  con- 
trol over  him  that  he  has  over  inani- 
mate matter.  In  the  nature  of  things, 
and  in  his  character,  he  resembles  a 
passenger,  not  a  package  of  goods.  It 
would  seem  reasonable,  tlierefore,  that 
the  responsibiity  of  the  carrier  should 
be  measured  by  the  law  wliicli  is  api^li- 
cable  to  passengers,  rather  tiian  by  that 
which  is  applicable  to   the  carriage  of 


common  ^ods.  There  are  no  slaves 
in  England,  but  there  are  persons  in 
whose  service  another  has  a  temporary 
interest.  We  believe  that  the  respon- 
sibility of  a  carrier  for  injury  which 
such  person  may  sustain,  has  never 
been  placed  on  the  same  principle  with 
his  responsibility  for  a  bale  of  goods. 
He  is  undoubtedly  answerable  for  any 
injury  sustained  in  consequence  of  his 
negligence  or  want  of  skill ;  but  we 
have  never  understood  that  he  is  re- 
sponsible further.  The  law  applicable 
to  common-carriers  is  one  of  great 
rigor.  Though  to  the  extent  to  which 
it  has  been  carried,  and  in  the  cases  to 
which  it  has  been  applied,  we  admit  its 
necessity  and  its  policy,  we  do  not 
think  it  ought  to  be  carried  farther,  or 
applied  to  new  cases.  We  think  it  has 
not  been  applied  to  living  men,  and 
that  it  ought  not  to  be  applied  to 
them.''  The  learned  judge,  in  a  subse- 
quent part  of  his  opinion,  intimated 
that  the  carrier  of  passengers  was 
bound  only  to  ordinary  diligence ;  but 
whatever  he  said  to  that  effect  cannot 
be  considered  as  law,  and  was  virtually 
overruled  in  the  subsequent  case  of 
Stokes  V.  Saltonstall,  13  Pet.  181,  192. 
See  also,  as  to  the  liability  of  a  car- 
rier of  slaves,  Clark  v.  McDonald,  4 
McCord,  223  ;  Williams  v.  Taylor,  4 
Porter,  23 1.  —  If  any  portion  of  a  car- 
rier's route  is  attended  with  peculiar 
danger,  he  is  bound  to  give  his  pas- 
sengers notice  thereof.  Thus,  in  Laing 
V.  Colder,  8  Barr,  479,  which  was  an 
action  on  the  case  for  negligence, 
wliercby  the  plaintiff's  arm  was  broken 
whilst  he  was  travelling  in  the  railroad 
car  of  tlic  defendants,  it  appeared  tiiat 
the  accident  occurred  whilst  the  car  was 
passing  over  a  bridge,  which  was  so 
nai-row  that  the  plaintiffs  hand,  lying 
outside  of  the  car-window,  was  caught 
by  the  bridge  and  his  arm  broken. 
Tiie  defendants  gave  evidence  to  show 
that  during  the  journey  warning  had 
been  given  by  their  agent  to  a  passen- 
ger named  Long,  of  the  danger  of 
putting  his  feet  or  arms  out  of  the 
window,  and  that  he  sat  so  near  the 
plaintiff  that  the  warnings  must  have 
been  heard  by  the  latter.  They  also 
l)rovcd  that  printed  notices  were  put  up 
in  the  cars  warning  passengers  not  to 
put   their  arms  or  heads  outside   the 

[715] 


693 


THE   LAW   OF   CONTRACTS. 


[book   III. 


mand  fare,  is  not  so  certain ;  but  he  would  certainly  be  liable  for 


windows,  and  that,  immediately  before 
reaching  the  bridge,  notice  was  given 
in  a  loud  voice  for  the  passengers  to 
keep  their  heads  and  arms  inside  the 
car.  Upon  this  evidence  Eldred,  P.  J., 
instructed  the  jury,  "  that  a  carrier  of 
passengers  was  bound  to  furnish  suita- 
ble conveyances,  such  as  with  due  care 
and  proper  attention  would  carry  pas- 
.sengers  safely,  unless  interrupted  by 
some  accident  whicli  no  human  wisdom 
could  foresee.  That  he  must  give  no- 
tice of  approaching  danger,  or  of  the 
dangerous  places  on  the  route,  if  some 
are  more  dangerous  than  others.  This 
notice  must  be  full  and  complete  to  all 
persons  who  travel,  whether  Icaiaied  or 
unlearned.  The  slightest  negligence  in 
any  of  these  particulars  makes  him  liable 
for  all  damages.  That  in  the  present 
case,  the  presumption  was  there  had  been 
negligence,  and  it  was  for  defendants 
to  show  they  had  done  every  thing 
in  tlieir  power  to  relieve  themselves,  or 
that  it  resulted  from  the  plaintiff's  neg- 
ligence and  folly.  That  a  printed  no- 
tice of  the  danger  of  passengers  pulling 
their  hands  out  of  the  windows  Avas  not 
sufficient;  but  if  they  had  given  plaintiff 
sufficient  warning  as  they  approached 
the  bridge,  this  would  discharge  them." 
The  case  was  carried  up  to  the  Supreme 
Court  of  Pennsylvania,  and  that  court 
held  the  instruction  to  be  correct.  Bell, 
J.,  in  delivering  the  judgment  said:  — 
"It  is  long  since  settled,  that  the  com- 
mon-law responsibilities  that  attach  to 
carriers  of  goods  for  hire,  do  not,  as  a 
whole,  extend  to  passenger  carriers. 
Like  the  former,  the  latter  are  not  insu- 
rers against  all  such  accidents  and  inju- 
ries as  are  not  occasioned  by  the  act  of 
God  or  the  public  enemy.  But  though 
in  legal  contemplation  they  do  not  war- 
rant the  absolute  safety  of  their  passen- 
gers, they  are  yet  bound  to  the  exercise 
of  the  utmost  degree  of  diligence  and 
cai-e.  The  slightest  neglect  against 
which  human  prudence  and  foresight 
may  guard,  and  by  which  hurt  or  loss  is 
occasioned,  will  render  them  liable  to 
answer  in  damages.  Nay;  the  mere 
happening  of  an  injurious  accident, 
raises  j)rimd  facie,  a  presumption  of 
neglect,  and  throws  upon  the  carrier 
the  onus  of  showing  it  did  not  exist. 
This  punctilious  attention  to  the  safet}' 
of  the  passenger  embraces  the  duty  of 
providing  strong  and  sufficient  car- 
[716] 


riages,  or  other  conveyances  for  the 
journey,  in  every  respect,  sea,  road,  and 
river-worthy,  safe  and  steady  horses,  or 
other  means  of  progression  ;  and  skilful 
drivers,  conductors  and  other  agents, 
Avhose  duty  it  is  to  use  every  precaution 
against  danger.  Should  there  be  the 
least  failure  in  any  of  these  things,  the 
proprietors  have  failed  of  the  discharge 
of  their  legal  obligations.  Above  all, 
if  there  be  in  any  part  of  the  road  a 
particular  passage  more  than  ordinarily 
dangerous,  or  requiring  superior  circum- 
spection on  the  part  of  the  passenger,  the 
conductor  of  the  vehicle  is  bound  to  give 
due  notice  of  it,  and  a  failure  to  do  so  will 
make  his  principal  responsible.  Were 
these  principles  sufficiently  indicated  to 
the  jury  by  the  charge  of  the  court  ?  It  is 
impossible  to  read  it  and  not  perceive 
the  sedulous  anxiety  Avith  which  the 
court  repeatedly  pressed  on  the  jury 
the  extreme  care  and  watchfulness  the 
law  exacts  at  the  hands  of  a  carrier  of 
persons.  The  instruction  upon  this 
head  was  not  only  emphatically  given, 
but  repeated  so  that  men  of  ordinary  in- 
telligence could  not  fail  to  be  impressed 
with  it."  See  also  Dudley  v.  Smith,  1 
Camp.  167;  DerAvort  v.  Loomer,  21 
Conn.  245;  Maury  v.  Talmadge,  2 
McLean,  157.  —  So,  if  through  the  de- 
fault of  a  coach  proprietor  in  neglecting 
to  provide  proper  means  of  conveyance, 
a  passenger  be  placed  in  so  perilous  a 
situation  as  to  render  it  prudent  for 
him  to  leap  from  the  coach,  Avhereby 
his  leg  is  broken,  the  proprietor  will  be 
responsible  in  damages  although  the 
coach  Avas  not  actually  overturned. 
Jones  V.  Boyce,  1  Stark.  493.  This 
case  was  much  considered  in  Stokes  v. 
Saltonstall,  13  Pet.  181,  and  the  doc- 
trine it  contains  fully  confirmed.  See 
also  to  the  same  effect,  Ingalls  i\  BUls, 
9  Met.  1  ;  Eldridge  v.  Long  Island  E. 
E.  Co.,  1  Sandf.  87.  — As  to  Avhat  will 
constitute  that  degree  of  negligence  for 
which  a  carrier  of  passengers  Avill  be 
held  liable,  it  must  of  course  depend 
upon  the  circumstances  of  each  case ; 
and  is  principally  a  question  of  fact  for 
tiie  jur)-,  Avith  proper  instructions  from 
the  court.  See  DerAvort  v.  Loomer, 
21  Conn.  245.  In  Crofts  v.  Water- 
house,  3  Bing.  319,  the  driver  of  a 
stage-coach  gathered  a  bank,  and  upset 
the  coach.  He  had  passed  the  spot 
where  the  accident   happened    twelve 


CH.  XII.]  BAILMENT.  694 

gross  negligence,  and  probably  liable  for  any  negligence,  (nwi) 


hours  before,  but  in  the  interval  a  hind- 
mark  had  been  removed.  In  an  action 
for  an  injury  sustained  by  this  accident, 
Littledale,  J.,  before  whom  the  cause 
was  tried,  tokl  the  jury,  that  as  there 
was  no  obstruction  in  the  road,  the 
driver  ought  to  have  kept  within  the 
limits  of  it;  and  that  the  accident 
having  been  occasioned  by  his  devia- 
tion, the  plaintiff  was  entitled  to  a 
verdict.  A  verdict  having  been  re- 
turned accordingly,  the  Court  of  Com- 
mon Pleas  granted  a  new  trial,  on  the 
ground  that  the  jury  should  have  been 
directed  to  consider  whether  or  not  the 
deviation  was  the  effect  of  negligence. 
And  per  Best,  C.  J.:  —  "  The  coachman 
was  bound  to  keep  in  the  road  if  he 
could;  and  the  jury  might,  from  his 
having  gone  out  of  the  road,  have  pre- 
sumed negligence,  and  on  that  presump- 
tion have  found  a  verdict  for  the  jjlain- 
tiff.  But  the  learned  judge,  instead  of 
leaving  it  to  the  jury  to  find  whether 
there  was  any  negligence,  told  them 
that  the  coachman  liaving  gone  out  of 
the  road,  tlie  plaintiff  was  entitled  to  a 
verdict.  This  action  cannot  be  main- 
tained unless  negligence  be  proved  ;  and 
whether  it  be  proved  or  not  is  for  the 
determination  of  the  jury,  to  whom  in 
tliis  case  it  was  not  submitted." 

{mm)  This  question  arose  in  the  late 
case  of  tlie  Philadelphia  &  Reading 
Railroad  Co.  v.  Derby,  U  How.  468, 
in  the  Supreme  Court  of  tiie  United 
States,  but  was  not  decided.  The  court, 
however,  strongly  intimated  an  opinion 
in  the  affirmative.  The  circumstances 
of  tlie  case  were  these.  Tlie  action  was 
brought  to  recover  damages  for  an  injury 
suffered  by  tlie  plaintiff  on  the  railroad  of 
the  defendants.  The  plaintiff  was  him- 
self the  president  of  another  railroad 
company,  and  a  stockholder  in  the  de- 
fendants'. He  was  on  the  road  of  the 
defendants  by  invitation  of  the  ju-esi- 
dent  of  the  company,  not  in  the  usual 
passenger  cars,  but  in  a  small  locomo- 
tive car  used  for  the  convenience  of 
the  officers  of  the  company,  and  paid 
no  fare  for  his  transportation.  The 
injury  to  his  person  was  occasioned 
by  coming  into  collision  with  a  loco- 
motive and  tender,  in  the  charge  of  an 
agent  or  servant  of  the  company,  which 
was  on  the  same  track,  and  moving  in 
an  opposite  direction.  Another  agent 
of  the  company,  in  the  exercise  of  pro- 


per care  and  caution,  had  given  orders 
to  keep  this  tract  clear.  The  driver  of 
the  colliding  engine  acted  in  disobedi- 
ence and  disregard  of  these  orders,  and 
thus  caused  the  collision.  The  courj 
below  instructed  the  jury,  that  if  the 
plaintiff  was  lawfully  on  the  road  at  the 
time  of  the  collision,  and  the  collision ' 
and  consequent  injuries  to  him  were 
caused  by  the  gross  negli'jmce  of  one  of 
the  servants  of  the  defendants,  then 
and  there  employed  on  the  road,  he 
was  entitled  to  recover,  notwithstand- 
ing the  circumstances  given  in  evi- 
dence, and  relied  upon  by  the  defend- 
ants' counsel,  as  forming  a  defence  to 
the  action ;  namely,  that  the  plaintiff 
was  a  stockholder  in .  the  company, 
riding  by  the  invitation  of  the  presi- 
dent, paying  no  fare,  and  not  in  the 
usual  passenger  cars,  &c.  The  Su- 
preme Court  held  this  instruction  to  be 
correct,  and  Grier,  J.,  in  speaking  of 
the  grounds  of  a  carrier's  duty,  said:  — 
"  This  duty  does  not  result  alone  from 
the  consideration  paid  for  the  service. 
It  is  imposed  by  the  law,  even  where 
the  service  is  gratuitous.  '  The  confi- 
dence induced  by  undertaking  any  ser- 
vice for  another,  is  a  sufficient  legal 
consideration  to  create  a  duty  in  the 
performance  of  it.'  See  Coggs  v.  Ber- 
nard, and  cases  cited  in  1  Smith's  Lead- 
ing Cases,  95.  It  is  true  a  distinction 
has  been  taken  in  some  ciises  between 
simple  negligence  and  great  or  gross 
negligence,  and  it  is  said  that  otie'who 
acts  gratuitously  is  liable  only  for  the 
latter.  But  this  case  does  not  call  upon 
us  to  define  the  diflcrence,  (if  it  be 
capable  of  definition,)  as  the  verdict 
has  found  this  to  be  a  case  of  gross 
negligence.  When  carriers  undertake 
to  convey  persons  by  the  j)owerful,  but 
dangerous  agency  of  steam,  public 
policy  and  safety  require  that  they  be 
held  to  the  greatest  possible  care  and 
diligence.  And  whether  the  considera- 
tion for  such  transportation  be  pecuni- 
ary or  otherwise,  the  personal  safety  of 
the  passengers  should  not  be  left  to  the 
sport  of  chance  or  the  negligence  of 
careless  agents.  Any  negligence  in 
such  cases  may  well  deserve  the  epithet 
of  'gross.'  "  But  see  Boycc  v.  Ander- 
son, 2  Pet.  150,  156,  where  it  is  said 
that  the  carrier  of  a  slave  without  re- 
ward would  be  liable  only  for  gross 
negligence.  See  also  Williams  v.  Tay. 
[717] 


695 


THE   LAW   OF   CONTRACTS. 


[book  III. 


The  reason  of  the  difference  between  his  liability  as  to 
passengers,  and  as  to  goods,  is  this.  The  carrier  of  goods 
has  absolute  control  over  them  while  they  are  in  his  hands ; 
he  can  fasten  them  with  ropes,  or  box  them  up,  or  put  them 
under  lock  and  key.  But  the  carrier  of  passengers  must 
leave  to  them  some  power  of  self  direction,  some  freedom  of 
motion,  some  care  of  themselves.  It  would  be  wrong,  there- 
fore, to  hold  him  to  as  absolute  a  responsibility  as  in  the  case 
of  goods.  But  still  the  policy  of  law  applies  to  the  carrier 
of  passengers  as  to  the  carriers  of  goods.  It  admits  only  so 
much  mitigation  of  the  rule,  as  that  he  is  liable  only  when 
he  is  guilty  of  negligence ;  but  if  in  the  least  degree  negli- 
gent, he  is  liable,  because  the  law  holds  him  to  do  all  that 
care  and  skill  can  do  for  the  safety  of  his  passengers.  Only 
when  all  this  is  done,  and  he  can  show  that  the  injury  com- 
plained of  is  not  to  be  attributed  to  any  default  whatever  on 
his  part,  or  on  the  part  of  any  one  for  whom  he  is  responsi- 
ble, is  he  discharged  from  his  liability.  The  onus^  to  prove 
that  he  is  not  in  fault,  rests  on  him.  («) 


lor,  4  Porter,  234.  In  Fay  v.  Steamer 
New  World,  1  Calaf.  348,  it  was  de- 
cided that  a  common-carrier  transport- 
ing gold  dust  gratuitously  was  not  liable 
in  case  of  a  loss,  unless  negligent. 

•'(h)  Christie  v.  Griggs,  2  Camp.  79. 
This  was  an  action  of  assumpsit  against 
the  defendant  as  owner  of  the  Black- 
wall  sta^e,  on  which  the  plaintiff,  a 
pilot,  was  travelling  to  London,  when 
it  broke  down  and  he  was  greatly 
bruised.  The  first  count  imputed  the 
accident  to  the  negligence  of  the  driver ; 
the  second,  to  the  insufficiency  of  the 
axletree  of  the  carriage.  The  plaintiff 
having  proved  that  the  axletree  snapped 
asunder  at  a  place  where  there  was  a 
slight  descent,  from  the  kennel  crossing 
the  road ;  that  he  was  in  consequence 
precipitated  from  the  top  of  the  coach; 
and  that  the  bruises  he  received  con- 
fined him  several  weeks  to  his  bed,  tliere 
rested  his  case.  Be>-t,  Sergeant,  con- 
tended strenuously  that  the  plaintiff 
was  bound  to  proceed  farther,  and  give 
evidence,  either  of  the  driver  being  un- 
skilful, or  of  the  coach  being  insufficient. 
But  per  Mniisjield,  C.  J.  :  —  "I  think 
the  plaintiff  has  made  a  prima  facie 
case  by  proving  his  going  on  the  coach, 

[718] 


the  accident,  and  the  damage  he  has 
suffered.  It  now  lies  on  the  other  side 
to  show  that  the  coach  was  as  good  a 
coach  as  could  be  made,  and  that  the 
driver  was  as  skilful  a  driver  as  could 
anywhere  be  found.  What  other  evi- 
dence can  the  plaintiff  give  ?  The 
passengers  were  probably  all  sailors 
like  himself;  and  how  do  they  know 
whether  the  coach  was  well  built  or 
whether  the  coachman  drove  skilfully  ? 
In  many  other  cases  of  this  sort  it  must 
be  equally  impossible  for  the  plaintifi'to 
give  the  evidence  required.  But  when 
the  breaking  down  or  overturning  of  a 
coach  is  proved,  negligence  on  the  part 
of  the  owner  is  implied.  He  has  al- 
Avays  the  means  to  rebut  this  presump- 
tion, if  it  be  unfounded,  and  it  is  now 
incumbent  on  the  defendant  to  make 
out,  that  the  damage  in  this  case  arose 
from  what  the  law  considers  a  mere  acci- 
dent." The  same  point  was  ruled  by 
Lord  Denman  at  Nisi  Prius,  in  Carpue 
V.  The  L.  &.  B.  Railway  Co.,  5  Q.  B.  747 ; 
it  was  decided  by  the  Court  of  Exche- 
quer in  Skinner  v.  London,  Brighton 
and  South-coast  Railway  Co.  2  E.  L.  &  E. 
360,  and  has  been  repeatedly  confirmed 
in  this   country.    Thus,   in    Ware    v. 


CH.   XII.]  BAILMENT.  696 

It  is  his  duty  to  receive  all  passengers  who  offer ;  (o)  to 


Gay,  11  Pick.  106,  it  was  held,  that  if  in 
an  action  by  a  passenger  against  tlie 
proprietors  of  a  stage-coacli,  for  an  in- 
jury occasioned  by  the  insufliciency  of 
the  coach,  tlie  plaintiff  proves  that  while 
the  coach  was  driven  at  a  moderate  rate 
upon  a  plain  and  level  road,  without 
coming  in  contact  with  any  other  ob- 
ject, one  of  the  wheels  came  off  and 
the  coach  overset,  whereby  the  plaintiff 
was  hurt,  the  law  will  imply  negligence, 
and  the  burden  of  proof  will  rest  upon 
the  defendants  to  rebut  this  legal  in- 
ference, by  showing  that  the  coach  was 
properly  fitted  out  and  provided.  To 
the  same  effect  are  Stokes  v.  Salton- 
stall,  13  Pet.  181 ;  Stockton  v.  Frey,  4 
Gill, 406;  McKenney U.Neil,  I  McLean, 
540. 

(o)  Bennett  v.  Button,  10  N.'II.  481 ; 
Jencks    v.    Coleman,    2     Sumn.    221. 
This  question  was  much  discussed  in 
Bennett  v.  The  P.  &  0.  Steamboat  Co., 
6  C.  B.  775,  but  the  case  went  oft"  finally 
on  a  question  of  pleading. — This  obliga- 
tion of  the  passenger  carrier  is,  however, 
subject  to  some  limitation.     Thus,  he 
may  rightfully  exclude  all  persons  of 
bad  character  or  habits  ;  all  whose  ob- 
jects are  to  interfei-c  in  any  way  with  his 
interests,  or  to  disturb  his  line  of  pa- 
tronage ;  and  all  who  refuse  to  obey  the 
reasonable  regulations  which  are  made 
for  the  government  of  the  line  ;  and  he 
may  rightfully  inquire  into  the  habits  or 
motives  of  passengers  who  offer  them- 
selves.   Jencks  v.   Coleman,  2    Sumn. 
221.     This  was  an  action  against  the 
proprietor  of  a  steamboat,  running  from 
New^   York    to    Providence,   for  refus- 
ing to  receive  the  plaintiff"  on  board  as 
a  passenger.      The    plaintiff"  was    the 
known  agent  of  the  Tremont  line  of 
stage-coaches.     The  proprietors  of  the 
steamboats    President    and     Benjamin 
Pranklin   had,   as   the   plaintiff"    knew, 
entered   into   a  contract  with   another 
line   called   the    Citizens'    Stage-coach 
Compau)',  to  carry  passengers  between 
Boston  and  Providence,  in  connection 
with  the  boats.     The  plaintiff  had  been 
in  the  habit  of  coming  on  board  the 
steamboats    at    Providence   and    New- 
port, for  the  purpose  of  soliciting  pas- 
sengers for  the  Tremont  line,  which  the 
proprietors  of  the  President  and  Ben- 
jamin Franklin  had  prohibited.     It  was 
held  that  if  the  jury  should  be  of  opinion 
that  the  above  contract  was  reasonable 


and  bona  fide,  and  not  entered  into  for 
the  purpose  of  an  oppressive  monopoly, 
and  that  tlie  exclusion  of  the  plaintiff" 
was  a  reasonable  regulation  in  order  to 
carry  this  contract  into  eft'ect,  the  pro- 
prietors of  the  steamlioat  would  be  jus- 
tified in  refusing  to  take  the  plaintiff  on 
board.  Story,  J.,  said  : — "  The  right  of 
passengers  to  a  passage  on  board  of  a 
steamboat  is  not  an  unlimited  right. 
But  it  is  subject  to  such  reasonable  regu- 
lations as  the  proprietors  may  prescribe 
for  the  due  accommodation  of  passen- 
gers, and  for  the  due  arrangement  of 
tlieir  business.  The  proprietors  have 
not  only  tiiis  right,  but  the  further  right 
to  consult  and  provide  for  their  own  in- 
terests in  the  management  of  such  boats, 
as  a  common  incident  to  their  right  of 
property.  They  are  not  bound  to  admit 
passengers  on  board,  who  refuse  to  obey 
the  reasonable  regulations  of  the  boat, 
or  who  are  guilty  of  gross  and  vulgar 
habits  of  conduct ;  or  who  make  dis- 
turbances on  board,  or  whose  characters 
are  doubtful,  or  dissolute,  or  suspicious  ; 
and  a  fortiori  whose  characters  are  un- 
equivocally bad.  Nor  are  they  bound 
to  admit  passengers  on  board,  whose  ob- 
ject is  to  interfere  with  the  interests  or 
patronage  of  the  proprietors  so  as  to 
make  the  business  less  lucrative  to 
them."  So  in  Commonwealth  v.  Power, 
7  Met.  596,  it  was  held  that  if  an  inn- 
keeper, who  has  frequently  entered  a 
railroad  depot  and  annoyed  passengers 
by  soliciting  them  to  go  to  his  inn,  re- 
ceives notice  from  the  superintendent 
of  the  depot  th.at  he  must  do  so  no 
more,  and  he  nevertheless  repeatedly 
enters  the  depot  for  the  same  purpose, 
and  afterwards  obtains  a  ticket  for  a 
passage  in  the  cars  with  a  bond  fde 
intention  of  entering  the  cars  as  a  pas- 
senger, and  goes  into  the  depot  on  his 
way  to  the  cars,  and  the  superintendent, 
believing  that  he  liad  entered  the  depot 
to  solicit  passengers,  orders  him  to  go 
out,  and  he  does  not  exhibit  his  ticket 
nor  give  notice  of  his  real  intention,  but 
presses  forward  towards  the  cars,  and 
the  superintendent  and  his  assistants 
thereupon  forcibly  remove  him  from 
the  depot,  using  no  more  force  than 
is  necessary  for  that  inirjjose,  such  re- 
moval is  justifiable,  and  not  an  indicta- 
ble assault  and  battery.  But  in  Ben- 
nett V.  Button,  10  N!  II.  481,  it  was 
held  that   the   proprietors   of  a  stage- 

.       [719J 


G97 


THE  LAW  OF   CONTRACTS. 


[book  III. 


carry  them  the  whole  route ;  (p)  to  demand  no  more  than 
the  usual  and  established  compensation ;  to  treat  all  his  pas- 
sengers alike ;  to  behave  to  all  with  civility  and  propriety ;  (q) 


coach,  who  hold  themselves  out  as 
common-carriers  of  passengers,  are 
bound  to  I'cceive  all  who  require  a  pas- 
sage, so  long  as  they  have  room,  and 
there  is  no  legal  excuse  for  a  refusal ; 
and  that  it  was  not  a  lawful  excuse, 
that  they  ran  their  coach  in  connection 
with  another  coach,  which  extended  tlie 
line  to  a  certain  place,  and  had  agreed 
with  the  proprietor  of  such  other  coach 
not  to  receive  passengers  who  came 
from  that  place,  on  certain  days,  unless 
they  came  in  his  coach.  The  defendant 
was  one  of  the  proprietors  and  the 
driver  of  a  stage-coach  running  daily 
between  Amherst  and  Nashua,  which 
connected  at  the  latter  place  with  ano- 
ther coach,  running  between  Nashua  and 
Lowell,  and  thus  formed  a  continuous 
mail  and  passenger  line  from  Lowell  to 
Amherst  and  onward  to  Francestown. 
A  third  person  ran  a  coach  to  and  from 
Nashua  and  Lowell,  and  the  defendant 
agreed  with  the  proprietor  of  the  coach 
connecting  with  his  line,  that  he  would 
not  receive  passengers  who  came  from 
Lowell  to  Nashua  in  the  coach  of  such 
third  person  on  the  same  day  that  they 
applied  for  passage  to  places  above 
Nashua.  The  plaintiff  was  notified  at 
Lowell  of  this  arrangement,  but  not- 
withstanding came  from  Lowell  to 
Nashua  in  that  coach,  and  then  de- 
manded a  passage  in  the  defendants' 
coach  to  Amherst,  tendering  the  regu- 
lar fare.  Held,  that  the  defendant  was 
bound  to  receive  him,  there  being  suffi- 
cient room,  and  no  evidence  that  the 
plaintiff'  was  an  unfit  person  to  be  ad- 
mitted, or  that  he  had  any  design  of 
injuring  the  defendant's  business. 

(;;)  Dudley  v.  Smith,  1  Camp.  167. 
In  this  case  the  plaintiff"  took  a  seat  on 
the  outside  of  the  defendants'  coach  to 
be  conveyed  from  a  place  called  the 
Eed  Lion,  in  the  Strand,  to  Chelsea. 
It  appeared  that  she  was  so  conveyed 
safely  as  far  as  the  Cross  Keys  Inn,  at 
Chelsea,  where  the  coach  was  accus- 
tomed to  stop.  When  the  coach  arrived 
before  the  gateway  of  this  inn,  leading 
to  the  stable-yard,  the  coachman  re- 
quested the  plaintiflt"  to  alight  there,  as 
the  passage  into  the  yard  was  very 
awkward.  She  said,  as  the  road  was 
dirty,  she  would  rather  be  driven  into 

[720] 


the  yard.  He  then  advised  her  to  stoop, 
and  drove  on.  The  consequence  was, 
that  she  was  struck  violently  on  the 
shoulders  and  back  by  a  low  archway 
in  the  passage,  by  which  she  was  severe- 
ly injured.  It  appeared  in  evidence  that 
the  archway  was  only  twelve  inches 
higher  than  the  top  of  the  coach. 
Upon  this  evidence.  Lord  Ellenborough, 
in  summing  itp  to  the  jury,  said :  — 
"  The  defendant  was  bound  to  carry  the 
plaintiff"  from  the  usual  place  of  taking 
up  to  the  usual  place  of  setting  down. 
As  coach-owner,  therefore,  he  was  an- 
swerable for  the  negligent  acts  of  his 
servant,  till  the  plaintiff"  was  set  down 
at  the  usual  place  for  passengers  alight- 
ing at  Chelsea.  This  appears,  for  the 
inside  passengers  at  least,  to  have  been 
the  yard.  If  the  coachman  had  said  to 
her,  '  the  others  will  be  safe  in  proceed- 
ing, but  you  must  go  down  here,  as  you 
cannot  remain  upon  the  coach  without 
danger  to  your  life,'  she  could  only  have 
blamed  her  own  imprudence  for  what 
followed.  But  he  should  have  given 
her  the  materials  to  judge,  if  he  was  to 
leave  her  to  make  her  election.  He  told 
her  the  passage  was  awkward;  whereas, 
according  to  the  evidence  it  was  imprac- 
ticable." See  also  Massiter  v.  Cooper, 
4  Esp.  260.  In  Coppin  v.  Braithwaite, 
8  Jur.  875,  it  is  said  to  have  been  ruled 
by  Rolfe,  B.,  at  Nisi  Prius,  that  a  car- 
rier having  received  a  pickpocket,  as  a 
passenger,  on  board  his  vessel  and  taken 
his  fare,  he  cannot  put  him  on  shore  at 
an  intermediate  place,  so  long  as  he  is 
not  guilty  of  any  impropriety.  But 
see  preceding  note. — In  Ker  v.  Moun- 
tain, 1  Esp.  27,  it  was  ruled  by  Lord 
Kenyan,  that  if  a  person  engages  a  seat 
in  a  stage-coach,  and  paj's  at  the  same 
time  only  a  deposit,  as  half  the  fare  for 
example,  and  is  not  at  the  inn  ready  to 
take  his  seat  when  the  coach  is  setting 
off,  the  proprietor  of  the  coach  is  at 
liberty  to  fill  up  his  place  with  another 
passenger ;  but  if,  at  the  time  of  engag- 
ing his  seat,  he  pays  the  whole  of  the 
fare,  in  such  case  the  proprietor  cannot 
dispose  of  his  place,  but  he  may  take  it 
at  any  stage  of  the  journey  that  he 
thinks  fit. 

((/)  Chamberlain  v.  Chandler,  3  Ma- 
son, 242. 


CH.   XII.]  BAILMENT.  698 

to  provide  suitable  carnages  and  means  of  transport ;  (/•)  to 


(r)  Christie  v.  Griggs,  2  Camp.  79 ; 
Curtis  V.  Drinkwater,  2  B.  &  Ad.  169; 
Bremner  v.  Williams,  1  C.  &  P.  414 ; 
Israel  v.  Clark,  4  Esp.  259  ;  Crofts  v. 
Waterhousc,  3  Bing.  319  ;  Sharp  v. 
Grey,  9  Bing.  457.  An  opinion  seems 
to  be  intimated  in  several  of  the  cases 
that  the  carrier  is  hound  to  loarrant  the 
sufficiency  of  his  coach.  Thus  in  Israel 
V.  Clark,  4  Esp.  259,  Lord  EUenborouyh 
is  reported  to  have  said  that  carriers 
were  bound  by  law  to  provide  sufficient 
carriages  for  the  safe  conveyance  of  the 
public  who  had  occasion  to  travel  by 
them ;  and  that  at  all  events  he  should 
expect  a  clear  landworthiness  in  the  cai'- 
riage  to  be  established.  So  in  Bremner 
V.  Williams,  1  C.&  P.414,  Best,  C.  J.,  says 
he  considers  that  every  coach  proprietor 
u-airanfs  to  the  public  that  his  stage-coach 
is  equal  to  the  journey  it  undertakes. 
And  finally  in  Sharp  v.  Grey,  9  Bing. 
457,  Bosanquet,  J.,  says  that  if  a  coach, 
■when  it  starts  upon  its  journey,  is  not 
roadiforthi/,  the  proprietor  is  liable  for 
the  consequences  upon  the  same  princi- 
ple as  a  ship-owner  who  furnishes  a 
vessel  which  is  not  seaworthy.  And  in 
Benett  v.  The  P.  &  0.  Steamboat  Co., 
6  C.  B.  775,  782,  upon  Sharp  v.  Grey 
being  cited  by  Sir  John  Jen-is,  attorney- 
general,  who  said  it  decided,  in  sub- 
stance, that  a  coach-proprietor  is  bound 
to  use  all  ordinary  care  and  diligence  to 
provide  a  safe  vehicle,  Cresswell,  J.,  in- 
terrupting him,  said: — "It  goes  a  little 
further  than  that ;  it  lays  down  that  he 
is  bound  at  all  events  to  provide  a  sound 
coach."  But  the  contrary  doctrine  was 
ruled  in  Christie  v.  Griggs,  2  Camp.  79, 
by  Sir  James  ilansfield,  who  held  that 
only  the  same  measure  of  diligence  was 
required  of  a  passenger  carrier  in  the 
construction  and  care  of  his  coacli,  as 
in  all  other  matters  appertaining  to  the 
conveyance  of  his  passengers.  See  the 
case  stated  with  the  learned  judge's  opi- 
nion, ante,  p.  691,  n.  {m).  And  tlic  doc- 
trine of  this  case  was  clearly  established 
as  the  law  in  this  country  by  the  case 
of  Ingalls  V.  Bills,  9  Met.  1.  That  was 
an  action  to  recover  damages  for  an  in- 
jury received  by  the  plaintiff  from  a 
defect  in  the  defendants'  coach.  The 
^defendants  introduced  evidence  tend- 
ing to  prove  that  they  had  taken  all 
possible  care,  and  incurred  extraordi- 
nary expense,  in  order  that  tlie  coacli 
should   1)6   of  the  best  materials   and 


VOL.   I. 


61 


•workmanship ;  that  at  the  time  of  the 
accident,  the  coach,  so  far  as  could  be 
discovered  from  the  most  careful  in- 
spection and  examination  externally, 
was  strong,  sound,  and  sufficient  for 
the  journey;  and  that  they  had  uni- 
formly exercised  the  utmost  vigilance 
and  care  to  preserve  and  keep  the  same 
in  a  safe  and  roadworthy  condition. 
But  the  evidence  further  tended  to 
prove  that  there  was  an  internal  defect 
or  flaw  in  the  iron  of  the  axletree,  at 
the  place  where  it  was  broken,  about 
three  eighths  of  an  inch  in  length,  and 
wide  enough  to  insert  the  point  of  a 
fine  needle  or  pin  ;  which  defect  or  flaw 
appeared  to  have  arisen  from  the  forg- 
ing of  the  iron,  and  which  might  have 
been  the  cause  of  the  breaking  ;  that 
the  said  defect  was  entirely  surrounded 
by  sound  iron  one  quarter  of  an  inch 
thick ;  and  that  the  fiaw  or  defect  could 
not  possibly  have  been  discovered  by 
inspection  and  examination  externally. 
The  learned  judge,  before  whom  the 
cause  was  tried,  instructed  the  jury  that 
the  defendants  were  bound  by  law,  and 
an  implied  promise  on  their  part,  to 
provide  a  coach,  not  only  apparently, 
but  really,  roadworthy  ;  that  tiiey  were 
liable  for  any  injury  tliat  might  arise  to 
a  passenger  from  a  defect  in  the  original 
construction  of  the  coacli,  altiiough  the 
imperfection  was  not  visible,  and  could 
not  be  discovered  upon  inspection  and 
examination.  Tiic  defendant  excepted 
and  moved  for  a  new  trial,  which  was 
granted.  Hubbard,  J.,  after  a  very 
thorough  and  able  examination  of  the 
cases,  concluded  his  opinion  thus:  — 
"  The  result  to  wliich  we  have  arrived, 
from  the  examination  of  the  case  before 
us,  is  tliis  :  That  carriers  of  passengers 
for  hire  are  bound  to  use  the  utmost 
care  and  diligence  in  the  providing  of 
safe,  sufficient,  and  suitable  coaches, 
harnesses,  horses,  and  coachmen,  in 
order  to  prevent  those  injuries  which 
human  care  and  foresight  can  guard 
against ;  and  that  if  an  accident  hap- 
pens from  a  defect  in  the  coach,  wliich 
might  have  been  discovered  and  reme- 
died ujjon  the  most  careful  and  thorough 
examination  of  the  coach,  such  accident 
must  be  ascribed  to  negligence,  for 
which  the  owner  is  liable  in  case  of  in- 
jury to  a  passenger  happening  by  reason 
of  such  accident.  On  the  other  hand, 
where  the  accident  arises  from  a  hid- 

[721] 


699 


THE   LAW   OF  CONTRACTS. 


[book  III. 


maintain  a  reasonable  degree  of  speed ;  (s)  and  to  iiave  ser- 
vants and  agents  competent  to  their  several  employments, 
and  for  the  default  of  his  servants  or  agents,  in  any  of  the 
above  particulars,  or  generally,  in  any  other  points  of  duty, 
the  carrier  is  directly  responsible,  [t)     And  he  is  liable  for 


den  and  internal  defect,  which  a  careful 
and  thorough  examination  would  not 
disclose  and  which  could  not  be  guarded 
against  by  the  exercise  of  a  sound  judg- 
ment and  the  most  vigilant  oversight, 
then  the  proprietor  is  not  liable  for  the 
injury,  but  the  misfortune  must  be 
borne  by  the  sufferer,  as  one  of  that 
class  of  injuries  for  which  the  law  can 
afford  no  redress  in  the  form  of  a  pecu- 
niary recompense."  Such  also  would 
seem,  from  the  late  case  of  Grote  v. 
The  C.  &  H.  Railway  Co.,  2  Exch.  251, 
to  be  the  doctrine  now  held  in  England. 
That  was  an  action  against  a  railway 
company  to  recover  compensation  for 
an  injury  received  by  the  plaintiff  by 
the  breaking  down  of  a  bridge,  over 
which  he  was  passing  in  a  passenger 
train.  It  appeared  at  the  trial  that  the 
services  of  an  eminent  engineer  had 
been  engaged  in  the  construction  of  the 
work.  Williams,  J.,  before  whom  the 
cause  was  tried,  told  the  jury  that  the 
question  was,  whether  the  bridge  was 
constructed  and  maintained  with  suffi- 
cient care  and  skill,  and  of  reasonably 
proper  strength  with  regard  to  the  pui'- 
poses  for  which  it  was  made ;  and  that, 
if  they  should  think  not,  and  that  the 
accident  was  attributable  to  any  such 
deficiency,  the  plaintiff  would  be  enti- 
tled to  recover.  The  counsel  for  the 
defendants  objected,  that  the  defendants 
would  not  be  liable  unless  they  had  been 
guilty  of  negligence  either  in  construct- 
ing or  maintaining  the  bridge.  His 
lordship,  however,  left  the  question  to 
the  jury,  subject  to  his  previous  direc- 
tion. Upon  an  application  to  the  court 
of  Exchequer  for  a  new  trial,  Pollock, 
C.  B.,  said: — "It  does  not  at  present 
distinctly  appear  whether  or  not  the 
attention  of  the  jury  was  directed  to 
the  proposition  that  if  a  party  in  the 
same  situation  as  that  in  which  the  de- 
fendants are,  employ  a  person  who  is 
fully  competent  to  the  work,  and  the 
best  method  is  adopted  and  the  best 
materials  are  used,  such  party  is  not 
liable  for  the  accident.  If  the  jury 
have  been  directed  in  conformity  with 

[722] 


this  rule,  there  is  no  ground  for  the 
present  application.  It  cannot  be  con- 
tended that  the  defendants  are  not  re- 
sponsible for  the  accident  merely  on 
the  ground  that  they  have  employed 
a  competent  person  to  construct  the 
bridge.  Upon  this  point  we  will  con- 
sult our  learned  brother."  On  a  sub- 
sequent day  the  Chief  Baron  said  that 
they  had  consulted  the  learned  judge, 
who  reported  to  them  that  he  had 
directed  the  jury  in  conformity  with 
the  above  proposition,  and  that  there- 
fore there  would  be  no  rule.  This 
case,  however,  shows  that  it  would  not 
be  sufficient  to  exempt  a  coach-Jiroprie- 
tor  from  liability,  that  he  had  employ- 
ed a  skilful  workman  to  construct  his 
coach ;  it  must  appear  that  it  was  actu- 
ally constructed  with  all  possible  care 
and  skill.  —  So  a  passenger  carrier  will 
be  held  to  the  greatest  vigilance  in  ex- 
amining and  inspecting  his  vehicles 
from  time  to  time.  Thus,  in  Bremner 
V.  Williams,  1  C.  &  P.  4U,  it  was  ruled 
by  Best,  C.  J.,  that  a  coach-proprietor 
ought  to  examine  the  sufficiency  of  his 
coach  previous  to  eachjom-ney;  and  if 
he  does  not,  and  by  the  insecurity  of 
the  coach  a  passenger  is  injured,  an 
action  is  maintainable  against  the 
coach-proprietor  for  negligence,  though 
the  coach  had  been  examined  previous 
to  the  second  journey  before  the  acci- 
dent ;  and  though  it  had  been  repaired 
at  the  coach-maker's  only  three  or  four 
days  before. 

(s)  See  Mayor  v.  Humphries,  1  C.  & 
P.  251 ;  Carpue  v.  The  L.  &  B.  RaU- 
way  Co.,  5  Q.  B.  747.  See  also  the 
charge  of  Best,  C.  J.,  to  the  grand  jury, 
8  C."&  P.  694,  n.  (6). 

(t)  The  owner  is  liable  for  an  acci- 
dent which  happens  from  the  driver's 
intoxication ;  but  not  if  from  his  physi- 
cal disability,  arising  without  his  fault 
from  extreme  and  unusual  cold  which 
rendered  him  incapable  for  the  time  of 
doing  bis  duty.  Stokes  v.  Saltonstall, 
13  Peters,  ISI.  See  also  Mclvinney  v. 
Neil,  1  McLean,  550 ;  Peck  v.  Neil,  3 
McLean,  24.    The  rule  stated  in  the  text 


CH.   XII.] 


BAILMENT. 


700 


the  acts  of  partners,  or  quasi  partners,  in  the  same  manner 
that  the  carrier  of  goods  is  liable,  [u) 

The  carrier,  whether  of  goods  or  passengers,  is  liable  for 
an  injury  to  strangers,  if  this  be  caused  by  the  negligence  of 
the  driver  or  conductor ;.  (y)  as  if  he  runs  over  one,  or  other- 
wise injures  him,  while  he  is  walking  on  a  public  way.  {w) 
And  where  such  an  injury  results  in  death,  if  an  action  is 
given  by  statute  to  the  personal  representatives  of  the  deceased 
the  damages  therein  must  be  wholly  confined  to  pecuniary 
injuries,  and  will  not  extend  to  mental  suffering  occasioned 
to  the  survivors,  {low)  Nor  is  it  a  defence  for  the  carrier  that 
the  road  was  out  of  order,  nor  that  the  reins  or  harness  broke, 
for  he  should  have  had  better  ones,  [x)  But  if  the  person 
injured  in  some  degree  caused  the  injury  by  his  own  negli- 


reccived  a  very  strong  application  in  the 
late  case  of  McEIroy  et  ux.  v.  Nashua  & 
Lowell  R.  E.  Corp.  4  Cusli.  400.  It 
was  an  action  on  the  case  to  recover 
damages  of  the  defendants  for  an  in- 
jury alleged  to  have  been  sustained  by 
the  female  plaintiff,  while  riding  as  a 
passenger  in  the  defendants'  cars  from 
Lowell  to  Nashville.  The  alleged  in- 
jury happened  in  consequence  of  the 
careless  management  of  a  switch,  by 
which  the  Concord  Railroad  connected 
•with  and  entered  upon  the  defendants' 
road.  The  switch  was  provided  by  the 
proprietors  of  the  Concord  Railroad, 
and  attended  by  one  of  their  servants, 
at  their  expense.  It  was  held  that  the 
defendants  were  liable.  And  Siiaw, 
C.  J.,  said :  — "  The  court  are  of  opinion 
upon  the  facts  agTced  that  the  defend- 
ants are  liable  to  the  plaintiffs  for  the 
damage  sustained  by  the  wife  whilst 
travelling  in  their  cars.  As  passenger 
carriers  the  defendants  were  bound  to 
the  most  exact  care  and  diligence,  not 
only  in  the  management  of  the  trains 
and  cars,  but  also  in  the  structure  and 
care  of  the  track  and  in  all  the  subsidi- 
ary arrangements  necessary  to  the  safety 
of  passengers.  The  wife  having  con- 
tracted with  the  defendants  and  paid 
fare  to  them,  the  plaintiffs  had  a  right 
to  look  to  them,  in  the  first  instance,  for 
the  use  of  all  necessary  care  and  skill. 
The  switch  in  question,  in  the  careless 
or  negligent  management  of  which  the 
damage  occurred,  was  a  part  of  the 
defendants'  road,  over  which  they  must 


necessarily  carry  all  their  passengers, 
and  although  provided  for,  and  attended 
by,  a  servant  of  the  Concord  Railroad 
Corporation,  and  at  their  expense,  yet 
it  was  still  a  part  of  the  -Nashua  & 
Lowell  Railroad,  and  it  was  within  the 
scope  of  their  duty  to  see  that  the  switch 
was  rightly  constructed,  attended,  and 
managed  before  they  were  justified  ia 
carrving  passengers  over  it."  See  also 
Grote  V.  The  C.  &  H.  RailwavCo.,  2 
Exch.  251 ;  cited  ante,  p.  G99,  n.'(;). 

{n)  Dwight  V.  Brewster,  1  Tick.  50; 
Champion  v.  Bostwick,  11  Wend.  571, 
18  id.  175;  Waland  v.  Elkins,  1  Stark. 
277  ;  Fromont  v.  Coupland.  9  Moore, 
319;  Cobb  v.  Abbot,  14  Pick.  289; 
Wetmore  v.  Baker,  9  Johns.  307  ;  Green 
V.  Beeslev,  2  Bing.  N.  C  108 ;  Stock- 
ton V.  Erev,  4  Gill.  40G. 

(v)  Stables  r.  Eley,  1  C.  &  P.  614 ; 
Sleath  V.  Wilson,  9  C.  &  T.  G07  ;  Joel 
V.  IMorison,  6  C.  &  P.  501.  And  if 
a  horse  and  cart  are  left  in  the  street, 
without  any  person  to  watch  them,  the 
owner  is  liable  for  any  damage  done  by 
them,  though  it  be  occasioned  by  the 
act  of  a  passer-by,  in  striking  the  horse. 
Illidge  V.  Goodwin,  5  C.  &  P.  190.  See 
also  livnch  v.  Nurdiu,  1  Q.  B.  29. 

{w)  "Boss  V.  Litton,  5  C  &  P.  407; 
Cotterill  v.  Starkev,  8  C.  &  P.  G91 ; 
Hawkins  v.  Cooper,  8  C.  &  P.  473; 
Wynn  v.  Allard,  5  W.  &  S.  524. 

(ww)  Blake,  Admrx.  v.  Midland  Rail- 
way Co.  10  E.L.  &E.  437. 

(x)  Cotterill  v.  Starkey,  8  C.  &  P. 
691 ;  Welsh  v.  Lawrence,  2  Chit.  262. 

[723] 


701^ 


THE   LAW   OP   CONTRACTS. 


[book  III. 


gence,  and  was  capable  of  ordinary  care  and  caution,  he  can- 
not recover  damages,  unless  the  negligence  of  the  party  who 
did  the  injury  was  so  extreme  *as  to  imply  malice,  [y)  So 
the  carrier  is  liable  for  injury  done  to  property  by  the  way- 
side, unless  he  can  discharge  himself  from  want  of  care,  [z) 

In  cases  of  injury  by  collision,  he  whose  negligence  causes 
the  injury  is  responsible.  What  is  called  the  law  of  the 
road,  is  in  this  country,  little  more  than  that  each  party  shall 
keep  to  the  right;  in  England  to  the  left.  At  sea,  a  vessel 
going  free  must  give  way  to  the  one  on  the  wind ;  one  on 
the  larboard  tack  gives  way  to  one  on  the  starboard  tack. 
And  steamers  must  give  w^ay  to  sailing  vessels.  These  rules, 
as  to  vessels,  are  based  upon  the  simple  principle,  that  the 
vessel  which  can  alter  her  course  most  easily  must  do  so  ; 
and  they  are  often  qualified  by  an  application  of  this  prin- 


[y)  Woolf  V.  Beard,  8  C.  &  P.  373  ; 
Cotterill  V.  Starkev.  8  C.  &  P.  591; 
Wynn  v.  AUard,  5  W.  &  S.  524  ;  Cook 
V.  Champlain  Transportation  Co.  1 
Denio,  91  ;  Brownell  v.  Flagler,  5  Hill, 
282;  Barnes  v.  Cole,  21  Wend.  188; 
Rathbun  v.  Payne,  19  Wend.  399  ;  Per- 
kins V.  Eastern  and  B.  «Sb  M.  R.  R.  Co., 
29  Maine,  307;  May  v.  Princeton,  11 
Met.  442;  Parker  v.  Adams,  12  Met, 
415  ;  Tonawanda  R.  R.  Co.  v.  Munger, 
5  Denio,  255,  4  Comst.  349  ;  Brown  v. 
Maxwell,  6  Hill,  592  ;  Trow  i'.  Verm. 
Central  R.  R.  Co.,  6  Law  Rep.  N.  S. 
83;  N.  Y.  &  E.  Railway  v.  Skinner, 
Supreme  Court  of  Pennsylvania,  Am. 
Law  Register,  Vol.  l,No.  2,  p.  97.  See 
also  White  v.  Winnissimmet  Co.  7 
Cush.  160;  Willetts  v.  Bufialo  &  Ro- 
chester R.  R.  Co.  14  Barb.  585  ;  Wil- 
loughby  V.  Horridge,  16  E.  L.  &.  E.  437. 
But  if  the  injury  be  voluntaiy  and  in- 
tentional the  party  committing  it  will 
be  liable,  notwithstanding  the  party  in- 
jui'ed  was  guilty  of  negligence.  There- 
fore, where  the  plaintiff,  being  the 
owner  of  a  lamb,  allowed  it  to  escape 
into  the  highway,  where  it  mingled 
with  a  flock  of  sheep  which  the  defend- 
ant was  driving  along ;  and  he,  know- 
ing this  fact,  made  no  attempt  to  sepa- 
rate the  lamb  from  the  flock,  but  deli- 
vered the  whole  to  a  drover  in  pursuance 
of  a  sale  previously  made,  by  whom 
they  were  taken  off  to  market ;  it  was 
held  that  these  facts  -were  suflicient  to 

[724] 


authorize  a  verdict  in  favor  of  the 
plaintiff  for  the  value  of  the  lamb, 
though  it  was  not  included  in  the  sale 
to  the  drover,  and  the  defendant  re- 
ceived nothing  on  account  of  it.  Brow- 
nell  V.  Elagler,  5  Hill,  282.  See  also 
Tonawanda  R.  R.  Co.  v.  Munger,  5 
Denio,  255,  267,  per  Beardsley,  C.  J.; 
Cook  V.  The  Champlain  Transporta- 
tion Co.,  1  Denio,  91  ;  Wynn  v.  AUard, 
5  W.  &  S.  524;  Rathbun  .v.  Pavne,  19 
Wend.  399 ;  Clay  v.  Wood,  5  Esp.  44. 
So  where  the  party  injured  is  a  child  of 
tender  years,  or  otherwise  incapable  of 
ordinary  care  and  caution.  Lynch  v. 
Nurdin,  1  Q.  B.  29.  In  this  case  the 
defendant  left  his  horse  and  cart  unat- 
tended in  the  street.  The  plaintiff,  a 
child  seven  years  old,  got  upon  the 
cart  in  play  ;  another  child  incautiously 
led  the  horse  on ;  and  the  plaintiff  was 
thereby  thrown  down  and  hurt.  It  was 
held  that  the  defendant  was  liable  in  an 
action  on  the  case,  though  the  plaintiff 
was  a  trespasser,  and  contributed  to  the 
injury  by  his  ovsii  act.  This  case  is  con- 
firmed by  Birge  v.  Gardiner,  19  Conn. 
507,  and  Robinson  v.  Cone,  22  Verm. 
213.  But  see  contra,  Hartfield  v.  Ro- 
per, 21  Wend.  615,  confirmed  by  Brown 
V.  Maxwell,  6  Hill,  592,  and  Munger  v. 
Tonawanda  R.  R.  Co.,  4  Comst.  349. 

(z)  Davies  v.  Mann,  10  M.  &  W. 
546 ;  Cook  i'.  The  Champlain  Trans- 
portation Co.,  1  Denio,  91. 


CH.   XII.]  BAILMENT.  '702 

ciple,  (a)  An  observance  of  these  rules,  or  a  disregard  of 
them,  is  often  very  important  in  determining  the  question  of 
negligence ;  especially  where  the  parties  meet  very  suddenly. 
*But  the  law  of  the  road  alone  does  not  decide  this  question; 
for  a  violation  of  it  may  be  for  good  cause,  or  under  circum- 
stances which  negative  the  presumption  of  negligence  which 
might  otherwise  arise  from  it.  (b)  It  is  said  that  he  who 
suffers  injury  from  collision,  caused  by  the  negligence  of  ano- 
ther, cannot  recover  damages  if  he  was  himself  at  all  negli- 
gent, and  if  his  negligence  helped  to  cause  the  injury.  In 
some  cases  this  principle  has  been  applied  with  great  rigor, 
and  asserted  in  very  broad  terms ;  but  it  is  obvious,  that,  as 
a  general  rule,  it  must  be  considerably  modified.  It  is  im- 
possible that  he  who  seeks  redress  for  a  wrong  which  he  has 
sustained  by  the  negligence  of  another,  should  always  lose 
all  right,  where  he  has  himself  been  in  any  way  negligent. 
There  must  be  some  comparison  of  the  negligence  of  the  one 
party  with  that  of  the  other,  as  to  its  intensity,  or  the  cir- 
cumstances which  excuse  it,  or  the  degree  in  which  it  enters 
as  a  cause  into  the  production  of  the  injury  complained  of. 
In  each  case  it  must  be  a  question  of  mixed  law  and  fact, 
in  which  the  jury,  under  the  direction  of  the  court,  will  in- 
quire whether  the  defendant  was  guilty  of  so  great  a  degree 
of  negligence  as,  in  the  particular  case,  will  render  him  lia- 
ble, and  then,  whether  the  plaintiff  was  also  guilty  of  so 
much  negligence  as  to  defeat  his  claim,  (c) 

(a)  Lowrr  ?■  The  Steamboat  Port-  Kennard  v.  Burton,  25  Maine,  39 ; 
land,  1  Law  Reporter,  (1839)  p.  313;  Marriott  v.  Stanley,  1  M.  &  Gr.  5G8 ; 
Lockwood  i».  Lashcll,  5  Law  Rep.  N.  S.  Clayards  v.  Dcthick,  12  Q.  B.  439; 
390.  Beatty  v.  Gilmorc,  IG  Penn.  State  Pep. 

(b)  See  Pluckwell  v.  Wilson,  5  C.  &  463;  Trow  v.  Verm.  Central  R.  R.  Co., 
P.  375 ;  Kennard  v.  Burton,  25  Maine,  6  Law  Rep.  N.  S.  83 ;  Cattlin  v.  Hills, 
39;  Chaplin  r.  Ilawes,  3  C.  &  P.  554 ;  8  C.  B.  123;  Bridge  r.  The  Grand 
Clay  V.  Wood,  5  Esp.  44  ;  Wayde  v.  Junction  Railway  Co.,  3  M.  &  W.  244 ; 
Carr,  2  D.  &  R.  255  ;  Butterfield  Davics  v.  ]\L\nn,  10  M.  &  W.  546  ;  Ro- 
i>.  Forrester,  11  East,  60;  Turley  v.  binson  v.  Cone,  22  Verm.  213;  Moore 
Thomas,  8  C.  &  P.  103;  Wordsworth  v.  Inhabitants  of  Abbot,  32  Maine,  46  ; 
V.  Willan,  5  Esp.  273 ;  Mahew  v.  Boyce,  Munroe  v.  Leach,  7,  Met.  274  ;  Church- 
1  Stark.  423;  McLean  v.  Sharpc,  2  ill  v.  Rosebeck.  15 'Conn.  3.VJ ;  Carroll 
Harrin;,'.  481.  v.  N.  Y.  and  N.  H.  R.  R.  Co..  6  Law 

(c)  See  Rigby  v.  Hewitt,  5  Exch.  Rep.  N.  S.  101;  1  Ducr,  571  ;  Trow  i-. 
240;  Greenland  v.  Chaplin,  Id.  243;  Verm.  Central  R.  R.  Co.  24  Verm.  487. 
Thorogood  v.  Bryan,   8    C  B.   115;  See  also  anie,  p.  701,  n.  (t/). 

61*  [725] 


703  THE   LAW   OF   CONTRACTS.  [BOOK  III. 

SECTION  XIV, 
OF  SPECIAL  AGREEMENTS  AND  NOTICES. 

We  have  seen  how  severe  a  responsibility  is  cast  upon  the 
common-carrier  by  the  law ;  and  it  is  a  very  interesting 
question,  how  far  he  may  remove  it,  or  lessen  it,  with  or 
without  the  concurrence  of  the  other  party.  Can  the  carrier 
do  this  by  a  special  contract  with  the  owner  of  the  goods'; 
and  if  so,  is  a  notice  by  the  carrier  brought  home  to  the 
owner  equivalent  to  such  contract;  and  if  the  carrier  cannot 
in  this  way  relieve  himself  entirely  from  his  responsibility, 
can  he  lessen  and  qualify  it  ?  Some  of  these  questions  are 
not  yet  definitely  settled. 

There  is  no  doubt  that,  originally,  this  responsibility  was 
considered  as  beyond  the  reach  of  the  carrier  himself.  It  is 
but  about  fifty  years  since  he  was  permitted  to  qualify  or 
control  it  by  his  own  act.  And  courts  have  been  influenced 
in  their  opinion  of  his  rights  in  this  respect,  by  the  View  they 
have  taken  of  the  nature  of  his  responsibility.  The  more 
they  have  regarded  it  as  created  by  the  law  for  public  rea- 
sons, the  less  willing  have  they  been  that  it  should  be  placed 
within  the  control  of  one  or  of  both  parties  to  be  modified 
at  their  pleasure. 

The  first  question  is,  can  the  peculiar  responsibility  of  the 
common-carrier  be  destroyed  by  express  contract  between 
himself  and  one  who  sends  goods  or  takes  them  with  him, 
so  as  to  reduce  the  carrier's  liability  to  that  of  a  private  car- 
rier, and  make  him  liable  only  for  his  own  default  ?  It  seems 
to  be  well  settled  by  the  weight  of  authority  that  this  may 
be  done;(f/)  although  in  some  of  the  cases  in  which  it  is 

(c?)  It  seems  now  to  be  perfectly  set-  sently  see,  scarcely  a  volume  of  English 

tied  in  this  country  and  in  England  that  reports  appears  which  does  not  contain 

a  special  contract  between  the  owner  of  more  or  less  cases  concerning  contracts 

goods  and  a  can-ier,  limiting  the  com-  of  this  description,  no  question  is  ever 

mon-law  liability  of  the  latter,  is  valid,  made  as  to  their  validity.    Nor  do  we 

I-t  is  wholly  unnecessary  to  cite  author-  conceive  this  to  be  a  departure  from  the 

ities  to  show  that  such  is  the  case  in  ancient  principles  of  the  common  law; 

England ;  for,  although,  as  we  shall  pre-  for  it  nowhere  appears  that  such  con- 

[726] 


CH.   XII.]  BAILMENT.  704 

allowed,  it  is  intimated  that  this  is  a  departure   from   the 


tracts  were  ever  prohibited  as  contra- 
vening the  policy  of  the  law.  "  There 
is  no  case,"  sa_ys  Lord  Ellenhorough,  in 
Nicholson  v.  Willan,  5  East.  507,  "  to 
be  met  with  in  the  books  in  which  the 
right  of  a  carrier  thus  to  limit  by  spe- 
cial contract  his  own  responsibility,  has 
ever  been  by  express  decision  denied." 
It  should  be  observed,  moreover,  tliat 
this  question  is  not  at  all  affected  by 
the  CarriCTs  Act,  1 1  G.  IV.  &  1  Will. 

IV.  c.  68,  for  by  the  6th  section  of  that 
act  it  is  provided  that  nothing  iu  the 
act  contained  shall  in  any  wise  affect 
any  special  contract  for  the  conveyance 
of  goods  and  merchandises.  See  the 
Act  fully  stated,  posi,  p.  711,  n.  (/t).  On 
this  side  of  the  Atlantic  we  are  not 
aware  of  any  case  in  which  the  validity 
of  such  contracts  is  denied  until  Cole 

V.  Goodwin,  19  Wend.  251,  (1838). 
There  the  defendants  who  were  stage- 
coach proprietors,  had  published  a  notice 
to  the  effect  that  all  baggage  sent  by 
their  line  would  be  at  the  risk  of  the 
owners.  The  question  was,  whether 
such  notice,  brought  home  to  the  know- 
ledge of  the  plaintiff,  should  exempt 
the  defendants  from  their  common-law 
liability.  And  it  was  held  that  it  should 
not.  And  Mr.  Justice  Cowen,  who  de- 
livered the  opinion,  declared  that  there 
was  no  difference  between  such  notice 
brought  to  the  plaintiff's  knowledge  and 
an  express  contract ;  that  both  were 
evidence  of  an  agreement  between  the 
parties  to  limit  the  carrier's  liability  ; 
but  that  both  were  void  as  contraven- 
ing the  policy  of  the  law.  In  1840,  the 
case  of  Jones  r.  Voorhecs,  10  Ohio,  145, 
was  decided  by  the  Supreme  Court  of 
Ohio.  That  case  raised  precisely  the 
same  question  that  was  raised  in  Cole 
V.  Goodwin ;  and,  although  the  decision 
went  no  farther  than  to  declare  that  a 
notice  brought  to  the  plaintiff's  know- 
ledge did  not  exempt  the  defendant  from 
his  common-law  liability.  Wood,  3.,  who 
delivered  the  opinion  of  the  court,  man- 
ifested a  strong  inclination  to  adopt  the 
views  of  Mr.  Justice  Cowen,  in  their 
full  extent.  In  1842  came  the  case  of 
Gould  V.  Hill,  2  Hill,  G23.  That  was 
an  action  brought  in  the  Superior  Court 
of  the  city  of  New  York,  against  the 
defendants,  as  common-carriers,  to  re- 
cover the  value  of  certain  goods  de- 
livered to  them  to  be  transported  from 


New  York  to  Philadelphia.  On  deli- 
vering the  goods  in  question  to  the  de- 
fendants, they  gave  the  plaintiffs  a 
memorandum,  which  stated,  among 
other  things,  that  the  defendants  would 
not  hold  themselves  responsible  in  case 
of  loss  by  fire.  The  goods  were  de- 
sti;oycd  by  fire  on  their  passage ;  and 
evidence  was  given  tending  to  show 
that  the  loss  was  not  occasioned  by 
the  negligence  or  want  of  care  of  the 
defendants.  The  court  charged  the 
jury  that  under  the  circumstances  the 
defendants  were  chargeable  only  for  a 
loss  resulting  from  negligence.  The 
plaintiff  excepted,  and  the  jury  having 
returned  a  verdict  for  the  defendants, 
upon  which  judgment  was  rendered,  a 
writ  of  error  was  sued  out  from  the 
Supreme  Court.  And  per  Cowcn,  J. : 
"  In  this  case  the  common-carriers,  in- 
stead of  alleging  a  general  notice  re- 
stricting their  liability  to  the  plaintiffs 
and  all  others,  furnished  them  with  a 
special  acceptance  in  writing,  which 
they  received,  and  delivered  the  goods 
accordingly.  This  constitutes  undoubt- 
ed evidence  of  assent  on  their  part. 
One  exception  was,  of  casualties  occa- 
sioned by  fire  ;  and  the  loss  arose  from 
that  cause.  The  servants  of  the  de- 
fendants were  called  as  witnesses  to 
make  out  a  case  of  care;  and  the  jury, 
under  the  charge  of  the  court,  allowed 
this  as  a  defence.  For  myself  I  shall 
do  little  more  than  refer  to  my  opinion 
in  Cole  v.  Goodwin,  (19  Wend.  281,) 
and  the  reasons  for  such  opinion  as 
stated  in  the  course  of  that  case.  It 
was  to  the  effect,  that  I  could  no  more 
regard  a  special  acceptance  as  operating 
to  take  from  theduty  of  the  common-car- 
rier, than  a  general  one.  I  collect  what 
would  bo  a  contract  from  both  instances, 
provided  it  be  lawful  for  the  carrier 
to  insist  on  it ;  and  such  is  the  con- 
struction which  has  been  given  to  both 
by  all  the  courts.  The  only  difference 
lies  in  the  different  kinds  of  evidence 
by  which  the  contract  is  made  out. 
When  the  jury  have  found  that  the 
goods  were  delivered  with  intent  to 
abide  the  termi  of  the  general  notice,  I 
understand  a  contract  to  be  as  cH'ectu- 
ally  fastened  upon  the  bailor  as  if  he 
had  reduced  it  to  writing.  Indeed,  the 
contrary  construction  would,  I  think,  bo 
to  tolerate  a  fraud  on  the  part  of  the 

•    [727] 


705  THE  LAW  OF   CONTRACTS.  [BOOK  III. 

ancient  principles  of  the  common  law.     It  has  also  been  said 


bailor.  The  true  ground  for  repudiat- 
ing the  general  notice,  is,  therefore,  its 
being  against  public  policy;  and  this 
ground  goes  not  only  to  the  evidence  — 
the  mode  in  which  you  are  to  prove  the 
assent  —  but  to  the  contract  itself.  After 
forbidding  the  carrier  to  impose  it  under 
the  form  of  a  general  notice,  therefore, 
we  cannot  consistently  allow  him  to  do 
the  same  thing  in  the  form  of  a  special 
notice  or  receipt.  The  consequences  to 
the  public  would  be  the  same,  whether 
we  allow  one  form  or  the  other."  The 
judgment  was  accordingly  reversed  ; 
Nelson,  C.  J.,  dissenting.  We  are  not 
aware  that  this  decision  has  ever  been 
sanctioned  by  any  court  in  this  country. 
It  received  the  approbation  of  Mr.  Jus- 
tice Nisbet  in  Fish  v.  Chapman,  2  Geo. 
349,  but  that  case  did  not  call  for  any 
decision  upon  the  question.  On  the 
other  hand,  in  1848,  the  Supreme  Court 
of  tbe  United  States,  in  the  case  of  The 
New  Jersey  Steam  Nav.  Co.  v.  Mer- 
chants' Bank,  6  How.  344,  denied  the 
authority  of  Gould  v.  Hill,  and  held 
such  a  contract  to  be  valid.  Nelson,  J., 
said  :  —  "As  the  extraordinary  duties 
annexed  to  his  employment  concern 
only,  in  the  particular  instance,  the 
parties  to  the  transaction,  involving 
simply  rights  of  property,  —  the  safe 
custody  and  delivery  of  the  goods, — 
we  are  unable  to  perceive  any  well- 
founded  objection  to  the  restriction,  or 
any  stronger  reasons  forbidding  it  than 
exist  in  the  case  of  any  other  insurer  of 
goods,  to  which  his  obligation  is  analo- 
gous ;  and  which  depends  altogether 
upon  the  contract  between  the  parties. 
The  owner,  by  entering  into  the  con- 
tract, virtually  agrees,  that,  in  respect  to 
the  particular  transaction,  the  carrier  is 
not  to  be  regarded  as  in  the  exercise  of 
his  public  employment ;  but  as  a  private 
person  who  incurs  no  responsibility  be- 
yond that  of  an  ordinary  bailee  for  hire, 
and  answerable  only  for  misconduct  or 
negligence.  The  right  thus  to  restrict 
the  obligation  is  admitted  in  a  large 
class  of  cases  founded  on  bills  of  lading 
and  charter-parties,  where  the  exception 
to  the  common-law  liability  (other  than 
that  of  inevitable  accident)  has  been, 
from  time  to  time,  enlarged,  and  the 
risk  diminished,  by  the  express  stipula- 
tion of  the  parties.    The  right  of  the 

[728] 


carrier  thus  to  limit  his  liability  in  the 
shipment  of  goods  has.  we  think,  never 
been  doubted."  Since  that  time,  Gould 
V.  Hill  has  been  expressly  overruled  in 
New  York  in  three  cases ;  one  in  the 
Supreme  Court,  and  two  in  the  Superior 
Court  of  the  city  of  New  York.  We 
allude  to  Parsons' v.  Monteath,  13  Barb. 
353,  Dorr  v.  N.  J.  Steam  Nav.  Co., 
4  Sandf.  136,  and  Stoddard  v.  The 
Long  Island  K.  K.  Co.,  5  Sandf.  180. 
Dorr  V.  N.  J.  Steam  Nav.  Co.  was  an 
action  against  the  defendants,  as  com- 
mon-carriers upon  the  Long  Island 
Sound,  between  New  York  and  Ston- 
ington,  to  recover  damages  for  the  loss 
of  goods.  The  declaration  averred  that 
the  plaintiffs,  who  were  merchants  in 
New  York,  shipped  the  goods  in  ques- 
tion on  board  the  steamer  Lexington, 
in  the  defendants'  line,  to  be  carried  to 
Stonington  ;  that  on  the  same  evening, 
the  steamer  was  consumed  by  fire  on 
her  passage,  and  the  plaintiffs'  goods 
destroyed.  The  defendants  pleaded 
that  the  goods  in  question  were  re- 
ceived by  them  under  a  special  con- 
tract, by  reason  of  a  clause  and  notice 
inserted  in  their  bill  of  lading,  which 
was  set  forth  in  the  plea,  and  which 
contained,  among  other  things,  that  the 
goods  in  question  were  to  be  trans- 
ported to  Stonington  ;  danger  of  fire 
^•c,  excepted.  The  plea  then  averred 
that  the  liability  of  the  defendants  was 
restricted  by  the  exception  of  the  casu- 
alties mentioned  in  the  bill  of  lading, 
and  that  the  loss  in  question  was  occa- 
sioned by  one  of  the  excepted  casual- 
ties, and  was  without  the  fault  or  negli- 
gence of  the  defendants.  To  this  plea 
the  plaintiffs  demurred.  And  Campbell, 
J.,  in  pronouncing  judgment  upon  the 
demurrer  in  favor  of  the  defendants, 
said :  —  "  The  question  presented  for 
our  consideration  is,  whether  common- 
carriers  can,  by  special  contract,  restrict 
their  liabilities  for  losses  which  occur 
otherwise  tlian  by  the  act  of  God  or  the 
public  enemies.  If  the  point  were  now 
for  the  first  time  raised,  we  sliould 
have  considered  it,  if  not  entirely  free 
from  difficulty,  at  least  as  not  leaving 
much  room  for  doubt  as  to  the  correct- 
ness of  the  conclusion  at  which  we  have 
arrived.  The  judgment  of  a  majority 
of  the  late  Supreme  Court,  pronounced 


CH.  XII.]  BAILMENT.  706 

in  some  late  cases  in  this  country,  particularly  in  one  in  New 


ia.  the  case  of  Gould  v.  Hill,  2  Hill's  R. 
623,  was  cited  and  urged  on  the  part  of 
the  plaintiffs  as  settling  the  law  in  this 
State,  that  a  common-carrier  cannot, 
by  special  contract,  limit  his  liability. 
Though  the  court  was  divided  in 
opinion,  the  cause  does  not  seem  to 
have  been  carried  to  the  court  for  the 
correction  of  errors,  and  we  are  not 
therefore  sure  of  what  would  have  been 
the  decision  of  the  court  of  last  resort. 
But  the  clear  conviction  of  all  of  us, 
that  the  case  of  Gould  v.  Hill  was  not 
correctly  decided,  supported  as  we  are 
by  the  Supreme  Court  of  the  United 
States,  (Merchant's  Bank  v.  New  Jer- 
sey Steam  Navigation  Company,  6 
Howard,  344,)  and  the  great  import- 
ance of  the  question  to  a  commercial 
people,  especially  the  importance  of 
uniformity  between  the  courts  of  the 
State  and  Union,  in  the  rules  of  law 
regulating  commercial  transactions, 
compel  us  respectfully  to  dissent  from 
the  judgment  in  that  case."  Stoddard 
V.  Long  Island  R.  R.  Co.  is  to  the 
same  effect.  In  Parsons  v.  Monteath, 
the  defendants  being  common-carriers 
on  the  Erie  Canal,  between  Albany 
and  BuflPalo,  and  occupying  a  ware- 
house on  the  pier  at  Albany,  their 
agent  in  New  York  received  goods 
there,  belonging  to  the  plaintiff,  and 
gave  a  receipt  or  shipping-bill  therefor, 
in  the  name  of  the  defendants,  bj'  which 
thc}'  agreed  to  transport  the  goods  to 
Brighton  Locks,  "  the  danger  of  the 
lakes,  of  fire.  &c.,  and  acts  of  provi- 
dence excepted."  The  goods  readied 
Albany  on  the  morning  of  August  17, 
1848,  and  were  taken  from  the  tow- 
boats  into  the  defendants'  warehouse 
on  the  pier.  On  the  same  day  a  fire 
broke  out  in  the  city  of  Albany,  by 
which  the  warehouse  was  consumed ; 
and  the  plaintirt''s  goods,  being  removed 
by  the  defendants'  agent  into  a  canal 
boat  in  the  basin,  were  destroyed  by  the 
fire.  Held,  that  the  defendants  sus- 
tained thc  relation  of  common-carriers 
of  thc  goods,  at  thc  time  thc  fire  broke 
out,  and  when  thc  goods  were  de- 
stroyed ;  and  that  the  rules  of  law  inci- 
dent to  that  relation  applied  to  them  ; 
but  that  they  had  a  right  to  circumscribe 
or  limit  their  common-law  liability  as 
common-carriers,  by  agreement  ;  and 
that  having  expressly  excepted  thc  risk 


of  loss  by  Jire,  they  were  not  liable  for 
the  value  of  the  goods.  Wells,  J., 
said  :  —  "  Were  it  not  for  the  late  case 
of  Gould  V.  Hill,  (2  Hill,  623.)  I  should 
have  no  hesitation  in  holding  the  con- 
tract between  the  parties  as  valid  and 
binding,  and  one  to  which  we  were 
bound  to  give  eff"ect.  To  do  so  would 
be  in  accordance  with  a  long  and  un- 
broken course  of  decision  in  England 
and  in  many  of  our  sister  States,  and  in 
all  of  them,  I  believe,  where  the  ques- 
tion has  arisen,  excepting  Ohio ;  and 
would  be  in  harmony  with  the  views  of 
all  the  elementary  writers  on  thc  sub- 
ject. It  is  unnecessary  to  go  into  a 
particidar  examination  of  the  authori- 
ties cited.  I  content  myself  witii  the 
remark,  that  the  doctrine  is  fully  as- 
serted by  Story,  Chitty,  Kent,  and 
Angell,  and  most  abundantly  sustained 
by  the  authorities  to  which  they  refer. 
But  in  the  case  of  Gould  v.  Hill, 
(supra,)  Justice  Coicen  held  a  contrary 
doctrine  ;  that  it  was  not  competent  for 
a  common-carrier  to  restrict,  by  special 
contract,  his  common-law  liability  ;  and 
that  where  the  defendant,  being  a  com- 
mon-carrier, on  receiving  thc  plaintiff's 
goods  for  transportation,  gave  him  a 
memorandum  by  which  he  promised  to 
forward  the  goods  to  their  place  of  desti- 
nation, danger  of  fire,  &c.,  excepted,  the 
defendant  was  liable  for  a  loss  by  fire 
although  not  resulting  from  negligence. 
The  learned  justice  puts  his  decision 
wholly  on  the  ground  of  public  policy ; 
and  refers  to  his  reasoning  in  the  case 
of  Cole  V.  Goodwin,  (19  Wend.  2.51.) 
the  substance  of  which  is  (p.  281)  that 
a  common-carrier's  business  is  of  a 
public  nature :  that  he  is  a  public  ser- 
vant and  bound  to  perform  the  duties 
of  his  office,  and  that  he  should  no 
more  be  permitted  to  limit  or  vary  his 
obligations  or  liabilities  by  contract, 
than  a  sheriff,  or  jailor,  or  any  other  of- 
ficer appointed  by  law.  The  only  ques- 
tion with  me  is,  how  far  we  are  bound  by 
the  case  of  Gould  v.  Hill,  and  whether 
the  maxim,  stare  decisis,  in  conscciucnce 
of  it,  is  to  govern  thc  present  case.  It 
is  the  only  reported  case  where  this  pre- 
cise question  has  been  decided  in  that 
way  in  this  State.  No  case  that  I  am 
aware  of,  has  followed  it,  afiirming  the 
doctrine.  Nelson,  then  chief  justice  of 
this  court,  dissented  from  thc  decision. 

[729] 


TOT 


THE   LAW   OF   CONTRACTS. 


[book  III. 


York,  (e)  that  no  such  contract  is  valid,  or  has  any  efficacy. 
But  this  case  seems  to  rest  upon  a  previous  decision,  (/) 
that  the  carrier's  responsibility  is  not  affected  by  a  notice  from 
hini  made  known  to  the  other  party  ;  and  upon  the  difficulty 
of  distinguishing  this  from  an  express  contract. 

Undoubtedly  it  may  be  difficult  to  discriminate  very 
clearly  between  the  case  where  the  carrier  and  the  sender 
expressly  agree  that  the  carrier  shall  not  be  responsible  for 
the  property,  and  that  in  which  the  carrier  says  to  the  sender, 
"  If  you  send  goods  by  me,  I  will  not  be  responsible  for 
them,"  and  the  sender  thereafter,  without  reply,  sends  goods 


I  am  disposed  therefore  to  think,  in 
view  of  the  great  importance  of  the 
question  and  its  connection  with  so 
large  a  branch  of  the  commerce  of  the 
country,  that  we  ought  to  take  the  re- 
sponsibility of  overruling  it,  providing 
we  think  it  not  in  accordance  with  the 
settled  law  of  the  land.  It  is  a  ques- 
tion in  relation  to  which,  almost  above 
all  others,  the  law  should  be  uniform 
throughout  the  commercial  world,  espe- 
cially among  the  different  States  of  the 
Union.  It  relates  to  transactions,  which, 
in  their  nature,  expand  themselves  over 
and  through  extensive  districts  of  coun- 
try, and  to  places  widely  separated  from 
each  other.  No  one  can  fail  to  perceive 
the  great  inconvenience  that  must  result 
from  having  different  and  hostile  rules 
on  the  subject,  prevailing  between  the 
different  Atlantic  cities,  or  between 
them  and  the  Western  States.  If  it  be 
true,  as  I  think  is  undeniable,  that  by 
the  law  as  entirely  settled  in  England, 
and  in  most  of  the  United  States,  and' 
as  held  by  the  most  eminent  jurists  of 
the  country,  a  common-carrier  may,  by 
special  contract  with  his  employer, 
limit  his  liability  and  relax  the  rigor  of 
the  common-law  rule  applicable  to  his 
position,  I  think  we  ought  not  to  hesi- 
tate in  giving  the  law,  so  declared,  effect 
in  the  case  at  bar,  notwithstanding  the 
isolated  authority  in  this  court,  which 
stands  opposed  to  it.  I  think  the  rule 
as  laid  down  by  Justice  Cowen,  should 
be  regarded  as  a  deviation  from  the 
true  one,  from  which  the  court  should 
return  at  the  earliest  opportunity,  and 
that,  too,  notwithstanding  we  might, 
were  the  question  entirely  open,  prefer 
a  different  one."  The  learned  judge 
then  proceeds  to  declare  his  disapproval 

[730] 


of  Gould  V.  Hill  upon  principle,  ad- 
mitting the  question  to  be  still  an  open 
one,  and  concludes  :  —  "  In  every  light 
that  I  have  been  able  to  view  the  ques- 
tion, I  am  forced  to  the  conclusion  that 
the  rule  in  Gould  v.  Hill,  is  not,  and 
ought  not  to  be,  the  law.  That  it  is 
opposed  to  reason  as  well  as  to  author- 
ity, and  ought  not  to  be  followed." 
And  in  the  late  case  of  Moore  v.  Evans, 
14  Barb.  524,  Gould  v.  Hill  is  again 
explicitly  overruled.  See  also  Stoddard 
V.  Long  Island  R.  R.  Co.,  5  Sandf.  180. 
The  result  is  that  there  is  no  case, 
which  is  any  longer  to  be  regarded  as 
an  authority,  that  decides  that  an  ex- 
press contract  between  the  owner  of 
goods  and  a  carrier,  limiting  the  lia- 
bility of  the  latter,  is  void.  Eor  cases, 
besides  those  already  cited,  which  hold 
that  such  a  contract  is  valid  and  bind- 
ing, see  the  following :  —  Swindler  v, 
Hilliard,  2  Rich.  286  ;  Camden  and 
Amboy  Railroad  Co.  v.  Baldauf,  16 
Penn.  State  Rep.  67  ;  Bingham  v. 
Rogers,  6  W.  &  S.  495 ;  Beckman  v. 
Sliouse,  5  Rawle,  179;  Reno  v.  Hogan, 
12  B.  JNIonr.  63  ;  Farmers  and  Mecha- 
nics' Bank  v.  Champlain  Transporta- 
tion Co.,  '23  Verm.  186;  Sager  r.  The 
Portsmouth  &c.  R.  R.  Co.,  31  INIaine, 
228 ;  Walker  v.  York  &  No.  IMidland 
Railway,  3  Carr.  &  Kir.  279.  See 
also  the  editors'  notes  to  Austin  v.  The 
M.,  S.,  &  L.  Railway  Co.,  II  E.L.&E. 
506,  and  Carr  v.  The  L.  &  Y.  Railway 
Co.,  14  E.  L.  &  E.  340,  where  the  cases 
are  collected.  To  what  extent  a  carrier 
may  thus  exempt  himself  from  his  com- 
mon-law liability,  we  shall  inquire  in 
another  note. 

(e)  Gould  V.  Hill,  2  Hill,  623. 

(/)  Cole  V.  Goodwin,  19  Wend.  251. 


CH.   XII.]  BAILMENT.  "IQS 

by  him.  But  we  think  there  is  a  real  difference.  The  rule 
of  law,  derived  from  public  policy,  may  not  go  so  far  as  to 
*say  that  the  carrier  and  the  sender  shall  not  agree  upon  the 
terms  on  which  the  goods  are  to  be  transported ;  but  it  may 
nevertheless  say,  that  the  carrier  has  neither  the  right  to 
force  such  an  agreement  on  the  sender,  not  to  infer,  merely 
from  his  silence,  that  he  accepts  the  proposed  terms.  He 
may  be  silent  either  because  he  assents  to  them,  or  because 
he  disregards  them,  and  chooses  to  stand  upon  the  rights 
which  the  law  secures  to  him.  The  sender,  who  may  be  a 
passenger  about  to  enter  a  boat  or  a  car  with  his  baggage, 
learns  by  reading  the  ticket  which  he  buys  that  if  he  puts 
that  baggage  on  board  it  will  be  all  the  way  at  his  own  risk. 
He  has  a  right  to  disregard  such  notice ;  to  say  it  is  not 
true  ;  to  deliver  his  baggage  to  the  proper  person,  placing 
it  under  the  responsibilities  which  lie  upon  the  carrier  by 
the  general  law.  To  hold  otherwise  would  be  to  say,  not 
merely  that  carrier  and  sender  may  agree  to  relieve  the  car- 
rier from  his  peculiar  liability,  but  that  the  carrier  has  a  right 
to  force  this  agreement  on  the  sender;  which  is  a  very  dif- 
ferent thing.  ( 0-) 

(fj)  The  question  whether  a  public  such  loss  or  damage  should  bo  occa- 

notice,  brought  to  the  knowledge  of  the  sioned  by  the  want  of  ordinary  care  and 

bailor,  will  constitute  such  special  con-  diligence  in  the   master  and  crew,  in 

tract,  or  be  equivalent  thereto,  is  per-  which  case  they  would  pay  £10  per 

haps  not  entirely  settled,  but  the  decided  cent,  upon  the  loss  or  damage,  provided 

weight  of  authority  is  tliat  it  will  not.  such  payment  did  not  exceed  the  value 

The    first    case   in  which  it  was   ex-  of  the  vessel ;  but  that  they  were  wil- 

pressly  ruled  that  such  a  notice  was  ling  to  insure  against  all  accidents,  on 

valid  and  binding,  is  that  of  Having  v.  I'ecciving  extra  freight  in  proportion  to 

Todd,   1    Stark.  72,   decided   in  1815.  the  value.     The  case,   however,  went 

For  several  years  previous  to  this,  as  oft"  upon  another  point,  so  that  the  va- 

we  shall    presently  see,    carriers    had  lidity  of  the  notice   did  not   come  in 

been  in  the  habit  of  publishing  notices  question.     In   1804   came  the  case  of 

to  the  effect  that  tliey  would  not  be  re-  Lyon  v.  Mells,  8  East,  428,  in  which  a 

sponsible   for  goods   beyond  a  certain  notice  of  the  same   import  .had   been 

value,  unless  their  true  value  was  dis-  given.      But    this   case  also   went  off 

closed,   and  freight  paid   accordingly ;  without   drawing  in  question  tlic  vali- 

and  these  notices  had  received  the  sane-  dity  of  the  notice.    In  1813,  in  the  case 

tion  of  the  courts.    In  the  case  of  Ellis  of  Evans  v.   Soulc,  2  M.  &  S.  1,  a  no- 

V.  Turner,  8  T.  R.  531.  decided  ih  1800,  tice  appeared  which  extended  the  ex- 

a  notice  of  a  different  character  made  cmption  of  the  carrier  still  farther.  That 

its  appearance.  It  was  an  action  against  also  was  an  action  against  the  owner  of 

the  defendants  as  ship-owners  for  the  a  vessel.    He  had  given  notice  that  he 

loss  of  goods.     They  had  publislicd  a  should  not   consider  himself  liable   to 

notice  to  tlie  effect  that  they  would  not  make  good  to  any  extent  any  loss  or 

be  answerable  for  any  loss  or  damage  damage  arising  from  any  accident  or 

that  might  haj^pen  to  any  cargo,  unless  misfortune  whatever,  unless  occasioned 

[731] 


709 


THE  LAW  OF   CONTRACTS. 


BOOK  III. 


But  although  the  common-carrier  cannot  by  such  notice  ex- 
tinguish his  peculiar  liability,  yet  he  can  in  this  way  mate- 


by  the  actual  negligence  of  the  master 
or  mariners.  The  plaintiff's  counsel 
did  not  deny  the  validity  of  the  notice, 
but  contended  that  it  had  been  waived. 
The  court  merely  decided  that  it  had 
not  been  waived,  and  gave  judgment 
for  the  defendant.  Thus  stood  the 
cases  when  Having  v.  Todd  came  up, 
in  181.'5.  This  was  aa  action  against 
the  defendants,  who  were  lightermen, 
for  the  loss  of  goods  intrusted  to  them, 
to  carry.  It  appeared  that  the  goods, 
whilst  in  the  defendants'  custody,  had 
been  accidentally  destroyed  by  fire,  and 
the  question  was,  whether  they  were 
liable  for  the  loss.  It  appeared  that 
they  had  so  limited  their  responsibility 
by  a  notice  that  it  did  not  extend  to  a 
loss  by  fire.  Holroijd,  for  the  plaintiff, 
submitted  "  whether  the  defendants 
could  exclude  their  responsibility  alto- 
gether. This  was  going  further  than 
had  been  done  in  the  case  of  carriers, 
who  had  only  limited  their  responsibi- 
lity to  a  certain  amount."  But,  per 
Lord  EUenhorough  :  —  "  Since  they  can 
limit  it  to  a  particular  sum,  I  think  they 
may  exclude  it  altogether,  and  that  they 
may  say,  we  will  have  nothing  to  do 
with  fire."  Holroyd.  "  They  were 
bound  to  receive  the  goods."  Lord 
EUenhorough.  "Yes, but  they  may  make 
their  own  terms.  I  am  sorry  the  law  is 
so ;  it  leads  to  very  great  negligence." 
The  next  vear  came  the  case  of  Leeson 
V.Holt,  1  Stark.  186,  The  plaintiff  in 
this  case  had  sent  some  chairs  by  the 
defendant,  who  was  a  common-carrier. 
The  defendant  had  given  a  notice  to  the 
effect  that  all  household  furniture  sent  by 
him  would  be  entirely  at  the  risk  of  the 
owner  as  to  damage,  breakage,  &c. 
Lord  EUenhorough,  in  summing  up  to 
the  jury,  said :  —  "If  this  action  had 
been  brought  twenty  years  ago,  the 
defendant  would  have  been  liable,  since 
by  the  common  law  a  carrier  is  liable  in 
all  cases  except  two ;  %vhere  the  loss  is 
occasioned  by  the  act  of  God,  or  of  the 
king's  enemies  using  an  overwhelming 
force,  which  persons  with  ordinary 
means  of  resistance  cannot  guard 
against.  It  was  found,  that  the  com- 
mon law  imposed  upon  carriers  a  lia- 
bility of  ruinous  extent,  and  in  conse- 
quence, qualifications  and  limitations  of 
that  liability  have  been  introduced  from 
[732] 


time  to  time,  till,  as  in  the  present  case, 
they  seem  to  have  excluded  all  respon- 
sibility whatsoever,  so  that  under  the 
terms  of  the  present  notice,  if  a  .'servant 
of  the  carrier's  had  in  the  most  wilful 
and  wanton  manner  destroyed  tlie  fur- 
niture intrusted  to  them,  the  principals 
would  not  have  been  liable.  If  the  par- 
ties in  the  present  case  have  so  con- 
tracted, the  plaintiff  must  abide  by  the 
agreement,  and  he  must  be  taken  to 
have  so  contracted,  if  he  chooses  to  send 
his  goods  to  be  carried  after  notice  of 
the  conditions.  The  question  then  is, 
whether  there  was  a  special  contract. 
If  the  carriers  notified  their  terms  to  the 
person  bringing  the  goods,  by  an  adver- 
tisement, which,  in  all  probability,  must 
have  attracted  the  attention  of  the  per- 
son who  brought  the  goods,  they  were 
delivered  upon  those  terms  ;  but  the 
question  in  these  cases  always  is,  whe- 
ther tlie  delivery  was  upon  a  special 
contract."  This  is  the  last  that  we 
hear  of  notices  of  this  character  in  Eng- 
land, until  they  were  finally  put  an  end 
to  by  the  Carriers  Act,  already  alluded 
to.  See  the  Act,  post,  p.  711,  n.  (h). 
On  this  side  of  the  Atlantic  these  no- 
tices were  extensively  discussed  for  the 
first  time  in  Hollister  v.  Nowlen,  19 
Wend.  234,  and  Cole  v.  Goodwin,  Id. 
251.  These  cases  were  decided  in  18.38. 
The  defendants  in  both  cases  were 
coach  proprietors,  and  had  published 
notices  to  the  effect  that  all  baggage 
sent  by  their  lines  would  be  at  the  risk 
of  the  owners.  The  Supreme  Court  of 
New  York,  after  a  most  careful  consi- 
deration of  the  question,  declared  that 
the  notices  were  of  no  avail ;  that  the 
defendants  were,  notv.'ithstanding,  sub- 
ject to  all  their  common-law  liability. 
Mr.  Justice  Coicen,  who  delivered  the 
opinion  in  the  last  case,  placed  the  judg- 
ment of  the  court,  as  we  have  already 
seen,  on  grounds  of  public  policy,  which 
extended  equally  to  such  notices  and  to 
special  contracts.  But  in  tlie  former 
case  the  opinion  was  delivered  by  Mr. 
Justice  Bronson,  and  he  took  the  ground 
that  such  notices  were  not,  upon  sound 
principles  of  construction,  equivalent  to 
a  special  contract.  Upon  this  point  he 
uses  the  following  language:  —  "Con- 
ceding that  there  may  be  a  special  con- 
tract for  a  restricted  liability,  such  a 


CH.  XII.] 


BAILMENT. 


710 


rialJy  modify  and  qualify  it.  A  public  notice,  so  spread  abroad 
that  all  might  know  it,  and  brought  to  the  distinct  knowledge 
of  the  sender,  would  undoubtedly  justify  the  carrier  who  pro- 


contract  cannot,  I  think,  be  inferred 
from  a  general  notice  brought  home  to 
the  employer.  The  argument  is,  that 
where  a  party  delivers  goods  to  be  car- 
ried, after  seeing  a  notice  that  the 
carrier  intends  to  limit  his  responsi- 
bility, his  assent  to  the  terms  of  the 
notice  may  be  implied.  But  this  argu- 
ment entirely  overlooks  a  very  import- 
ant consideration.  Notwithstanding  the 
notice,  the  owner  has  a  right  to  insist 
that  the  carrier  shall  receive  the  goods 
subject  to  all  the  responsibilities  incident 
to  his  employment.  If  the  delivery 
of  goods  under  such  circumstances  au- 
thorizes an  implication  of  any  kind,  the 
presumption  is  as  strong,  to  say  the 
least,  that  the  owner  intended  to  insist 
on  his  legal  rights,  as  it  is  that  he  was 
willing  to  yield  to  the  wishes  of  the  car- 
rier. If  a  coat  be  ordered  from  a  me- 
chanic, after  he  has  given  the  customer 
notice  that  he  will  not  furnish  the  arti- 
cle at  a  less  price  than  one  hundred 
dollars,  the  assent  of  the  customer  to 
pay  that  sum,  though  it  be  double  the 
value,  may  perhaps  be  implied;  but  if 
the  mechanic  had  been  under  a  legal 
obligation,  not  only  to  furnish  the  coat, 
but  to  do  so  at  a  reasonable  price,  no 
such  implication  could  arise.  Now  the 
carrier  is  under  a  legal  obligation  to  re- 
ceive and  convey  the  goods  safely,  or 
answer  for  the  loss.  He  has  no  right  to 
prescribe  any  other  terms ;  and  a  notice 
can  at  the  most  only  amount  to  a  pro]30- 
sal  for  a  special  contract,  which  requires 
the  assent  of  the  otiier  party.  Putting 
the  matter  in  the  most  favorable  light 
for  the  carrier,  the  mere  delivery  of 
goods,  after  seeing  a  notice,  cannot  war- 
rant a  stronger  presumjjtion  that  tiie 
owner  intended  to  assent  to  a  restricted 
liability,  on  the  part  of  the  carrier,  tlian 
it  docs  that  he  intended  to  insist  on  the 
liabilities  imposed  by  law ;  and  a  spe- 
cial contract  cannot  be  implied  where 
there  is  such  an  equipoise  of  probabili- 
ties." To  the  same  effect  are  the  re- 
marks of  liedjldd,  J.,  in  Farmers'  and 
Mechanics'  Bank  v.  The  Champlain 
Transportation  Co.,  23  Verm.  ISfi,  205. 
"  We  are  more  inclined,"  says  he,  "  to 
adopt  the  view  which  the  American 
cases  have  taken  of  this  subject  of  no- 
tices, by  common-carriers,  intended  to 
VOL.   I.  62 


qualify  their  responsibility,  than  that  of 
the  Englisii  courts,  which  they  have  in 
some  instances  subsequently  regretted. 
The  consideration  that  carriers  are 
bound,  at  all  events,  to  carry  such  par- 
cels, within  the  general  scope  of  their 
business,  as  are  offered  to  them  to  carry, 
will  make  an  essential  difference  be- 
tween the  effect  of  notices  by  them,  and 
by  others  who  have  an  option  in  regard 
to  work  whicli  they  tindertake.  In  the 
former  case,  the  contractor  having  no 
right  to  exact  unreasonable  terms,  his 
giving  public  notice  that  he  shall  do  so, 
where  tliose.who  contract  witli  him  are 
not  altogether  at  his  mercy,  docs  not 
raise  the  same  presumption  of  acqui- 
escence in  his  demands  as  arises  in 
those  cases  where  the  contractor  has 
the  absolute  right  to  impose  his  own 
conditions.  And  unless  it  be  made 
clearly  to  appear,  that  persons  contract- 
ing with  common -carriers  expressly 
consent  to  be  bound  by  the  terms  of 
such  notices,  it  does  not  appear  to  us 
that  such  acquiescence  ought  to  be  in- 
ferred." The  same  doctrine  is  held  in 
Crouch  V.  North-Western  Kailwav  Co., 
19  Law  Times  Rep.  90  ;  Clark  u."  Fax- 
ton,  21  Wend.  153;  N.  J.  Steam  Nav, 
Co.  V.  Merchants'  Bank,  6  IIow.  344 ; 
Dorr  V.  N.  J.  Steam  Nav.  Co.,  4  Sandf. 
136 ;  Parsons  v.  Monteath,  13  Barb. 
353  ;  Stoddard  v.  The  Long  Island 
Railway  Co.,  5  Sandf.  180;  Fish  v. 
Chapman,  2  Geo-  349;  Moses  v.  Boston 
&  Maine  R.  R.,  4  Foster,  71.  See  ante, 
n.  (c/).  Some  of  our  courts,  however, 
even  since  Ilollistcr  ?•.  Nowlen  and  Cole 
V.  Goodwin  were  decided,  have  held 
similar  notices  valid.  But  they  have 
generall}-  done  so  with  reluctance,  and 
upon  tlie  ground  that  tliey  considered 
themselves  bound  by  the  decisions  of 
their  predecessors.  Sec  C.  &  A.  Rail- 
road Co.  V.  Baldauf,  16  Penn.  State 
Rep.  67  ;  Laing  v.  Colder.  8  Barr,  479  ; 
Bingham  v.  Rogers,  6  W.  &  S.  500. 
Sec  also  Sager  (--.  The  Portsmouth,  &c. 
Railroad  Co.,  31  Maine,  22S.  We  tiiink 
there  cannot  be  much  douht  but  that  the 
doctrine  so  firmly  cstablislied  in  New 
York,  and  in  the  Supreme  Court  of  the 
United  States,  will  generally  be  adopted 
in  this  country  wherever  tlie  question 
still  remains  open. 

[733] 


711' 


THE   LAW   OF   CONTRACTS. 


[book  III. 


posed  to  confine  himself  to  certain  departments,  or  to  exclude 
*  certain  classes  of  goods,  and  in  accordance  therewith  refused 
to  take  parcels  of  the  excluded  description.  For  a  common- 
carrier  does  not  necessarily  agree  to  take  all  sorts  of  goods, 
any  more  than  he  does  to  carry  them  to  all  places.  An  ex- 
press between  Boston  and  New  York  does  not  agree  to  carry 
a  load  of  hay,  or  a  cargo  of  cotton.  The  carrier  has  a  right 
to  refuse  without  notice  articles  which  obviously  differ  from 
his  usual  course  of  business,  and  he  has  also  a  right  to  define 
and  limit  that  business,  and  give  notice  accordingly. 

So,  too,  he  has  a  right  to  say  to  all  the  world,  and  to  each 
sender,  that  he  will  not  carry  goods  beyond  a  certain  value; 
or  that  if  he  carries  such  goods  he  must  be  paid  for  it  by  a 
premium  on  the  increased  risk.  This  is  reasonable ;  and  it 
is  consistent  with  public  policy,  because  it  tends  to  give  the 
carrier  exact  knowledge  of  what  he  carries,  and  of  what  risks 
he  runs,  and  thus  to  induce  him  to  take  the  proper  care,  and 
proportion  his  caution  and  his  means  of  security  to  the  value 
of  the  goods,  {h) 


(k)  The  notices  now  alluded  to  have 
often  been  confounded  with  those  which 
exempt  the  carrier  absolutely  from  his 
liability,  and  which,  as  we  have  seen  in 
the  last  note,  are  not  held  valid.  But 
it  is  very  important  that  the  two  should 
be  kept  distinct.  We  have  seen  that 
there  are  but  two  cases  in  the  English 
books,  and  those  nisi  prius  cases,  in 
which  the  latter  have  been  expressly 
sanctioned  ;  and  that  they  were  entirely 
put  an  end  to  by  the  Carriers  Act. 
On  the  other  hand,  the  former  were 
sanctioned  by  the  courts  at  an  earlier 
date,  were  recognized  in  a  vast  number 
of  cases  previous  to  the  Carriers  Act, 
were  established  and  regulated  by  that 
act,  and  have  never,  that  we  are  aware 
of,  been  repudiated  by  any  court  in  this 
country  or  in  England.  The  case  of 
Kicbolson  v.  "Willan,  5  East,  507,  is 
generally  considered  as  the  one  in 
which  they  were  first  sanctioned  by  a 
judicial  decision.  There  the  defendant 
was  a  coach,  proprietor,  and  had  pub- 
lished a  notice,  the  purport  of  which 
was  that  he  would  not  be  accountable 
for  any  package  whatever,  (if  lost  or 
damaged)  above  the  value  of  5/.,  unless 
insured  and  paid  for  at  the  time  of  de- 
[734] 


livery.  The  action  was  brought  to  re- 
cover for  the  loss  of  a  parcel  delivered 
to  the  defendant  to  carry,  containing 
goods  to  the  value  of  58/.  No  disclo- 
sure was  made  of  the  true  value  of  the 
parcel,  nor  was  any  extra  freight  paid; 
and  the  court  held  that  the  defendant 
was  protected  b}'  his  notice.  From  this 
time  until  the  passage  of  the  Carriers 
Act,  effect  was  given  to  similar  notices 
in  Harris  v.  Packwood,  3  Taunt.  264, 
(1810);  Beck  1-.  Evans,  16  East,  244, 
(1812);  Levi  v.  Waterhouse,  1  Price, 
280,  (1815);  Bodenham  r.  Bennett,  4 
Price,  31,  (1817);  Smith  v.  Home,  8 
Taunt.  144,  (1818)  ;  Birkett  r.  AYillan, 
2  B.  &  Aid.  356,  (1819);  Batson  v. 
Donovan,  4  B.  &  Aid.  21,  (1820) ;  Gar- 
nett  V.  Willan,  5  B.  &  Aid.  53,  (1821) ; 
Sleat  V.  Eaag,  Id.  342,  (1822)  ;  Duff  v. 
Budd,  3  Brod.  &  Bing.  177,  (1822); 
Marsh  v.  Home,  5  B.  &  Cr.322,  (1826)  ; 
Brooke  v.  Pickwick,  4  Bing.  218, 
(1837);  Eilcv  v.  Home,  5  Bing.  217, 
(1828);  Bradley  r.  Waterhouse,  M.  & 
M.  154,  (1828),  and  many  other  cases. 
In  this  state  of  tilings,  the  Carriers 
Act,  11  Geo.  4  and  1  Will.  4,  c.  68,  was 
passed.  It  is  entitled,  "An  Act  for  the 
more  effectual  Protection  of  Mail  Con- 


CH.  XII.] 


BAILMENT. 


712 


It  would   follow  then,  that  where   the   carrier   interposes 
such  general  notice,  as  "  all  baggage  at  risk  of  owners."  the 


tractors,  Stage-Coach  Proprietors,  and 
other  common  Carriers  for  Hire,  against 
the  Loss  of  or  Injury  to  Parcels  or  Pack- 
ages delivered  to  them  for  Convcj'ance 
or  Custody,  the  Value  and  Contents  of 
which  shall  not  be  declared  to  them  by 
the  Owners  thereof."  The  first  section 
recites,  "  That  whereas,  by  reason  of 
the  frequent  practice  of  bankers  and 
others  of  sending  by  the  public  mails, 
stage-coaches,  wagons,  vans,  and  other 
public  conveyances  by  land,  for  hire, 
parcels  and  packages  containing  mo- 
ney, bills,  notes,  jewelry,  and  other  ar- 
ticles of  great  value  in  small  compass, 
much  valuable  property  is  rendered  lia- 
ble to  depredation,  and  the  responsi- 
bility of  mail  contractors,  stage-coach 
proprietors,  and  common-carriers  for 
hire,  is  gi-eatly  increased  :  And  whereas 
through  the  frequent  omission,  by  per- 
sons sending  such  parcels  and  pack- 
ages, to  notify  the  value  and  nature  of 
the  contents  thereof,  so  as  to  enable 
such  mail  contractors,  stage-coach  pro- 
prietors, and  other  common-carriers,  by 
due  diligence,  to  protect  tiiemselves 
against  losses  arising  from  their  legal 
responsibility,  and  the  difHculty  of  fixing 
parties  with  knowledge  of  notices  pub- 
lished by  such  mail  contractors,  stage- 
coach proprietors,  and  other  common- 
carriers,  with  the  intent  to  limit  such 
responsibility,  they  havebecome  exposed 
to  great  and  unavoidable  risks,  and 
have  thereby  sustained  heavy  losses  ; '' 
and  enacts,  "  That  from  and  after  the 
passing  of  this  act,  no  mail  contractor, 
stage-coach  proprietor,  or  other  com- 
mon-carrier by  land,  for  hire,  shall  be 
liable  for  the  loss  of,  or  injury  to,  any 
article  or  articles  or  property  of  the  de- 
scriptions following,  that  is  to  sa)',  gold 
or  silver  coin  of  tliis  realm  or  of  any 
foreign  state,  &.c.,  (enumerating  various 
kinds  of  goods)  contained  in  any  parcel 
or  package  which  shall  have  been  de- 
livered, eitiier  to  be  carried  for  hire,  or 
to  accompany  the  person  of  any  passen- 
ger, in  any  mail  or  stage-coach,  or  other 
public  conveyance,  when  the  value  of 
such  article  or  articles  or  property 
aforesaid,  contained  in  such  parcel  or 
package,  shall  exceed  the  sum  of  10/., 
unless  at  the  time  of  the  delivery  thereof 
at  the  office,  warehouse,  or  receiving- 
house   of  such   mail  contractor,  stage- 


coach proprietor,  or  other  common- 
carrier,  or  to  his,  her,  or  their  book- 
keeper, coachman,  or  other  servant,  for 
the  purpose  of  being  carried,  or  of  ac- 
companying the  person  of  any  passen- 
ger as  aforesaid,  the  value  and  nature 
of  such  article  or  articles  or  property 
shall  have  been  declared  by  the  person 
or  persons  sending  or  delivering  the 
same,  and  such  increased  charge  as 
hereinafter  mentioned,  or  an  engage- 
ment to  pay  the  same,  be  accepted  by 
the  person  receiving  such  parcel  or 
package."  Sect.  2  enacts,  '•  That  when 
any  parcel  or  package  containing  any 
of  the  articles  above  specified  shall  be  so 
delivered,  and  its  value  and  contents 
declared  as  aforesaid,  and  such  value 
shall  exceed  the  sum  of  10/.,  it  shall  be 
lawful  for  such  mail  contractors,  stage- 
coach proprietors,  and  other  common- 
carriers,  to  demand  and  receive  an  in- 
creased rate  of  charge,  to  be  notified  by 
some  notice  affixed  in  legible  charac- 
ters in  some  public  and  conspicuous 
part  of  the  office,  warehou.se,  or  other 
receiving-house  where  such  parcels  or 
packages  are  received  by  them  for  the 
purpose  of  conveyance,  stating  the  in- 
creased rates  of  charge  required  to  be 
paid;  over  and  above  the  ordinary  rate 
of  carriage,  as  a  compensation  for  the 
greater  risk  and  care  to  be  taken  for 
the  safe  conveyance  of  such  valuable 
articles,  and  all  persons  sending  or  de- 
livering parcels  or  packages  containing 
such  valuable  articles  as  aforesaid,  at 
such  office,  shall  be  bound  by  such  no- 
tice without  further  proof  of  the  same 
having  come  to  their  knowledge."  Sect. 
3  enacts,  "  That  when  the  value  shall 
have  been  so  declared,  and  the  increased 
rate  of  charge  paid,  or  an  engagement 
to  pay  the  same  shall  have  been  ac- 
cepted as  hereinbefore  mentioned,  the 
person  receiving  such  increased  rate  of 
charge,  or  accepting  such  agreement, 
shall,  if  thereto  required,  sign  a  receipt 
for  the  package  or  parcel,  acknowledg- 
ing the  same  to  have  been  insured, 
which  receipt  shall  not  be  liable  to  any 
stamp  duty ;  and  if  such  receipt  shall 
not  be  given  when  required,  or  such 
notice  as  aforesaid  shall  not  have  been 
affixed,  the  mail  contractor,  stage-coach 
proprietor,  or  otiicr  common-carrier,  as 
aforesaid  shall  not  have  or  be  entitled 
[735] 


713 


THE   LAW   OF   CONTRACTS. 


[book   III. 


sender  may  disjregard  it,  and  the  baggage  will  be  at  the  risk 
of  the  carrier ;  or  he  may  expressly  refuse  to  be  bound  by  it, 


to  any  benefit  or  advantage  under  this 
act,  but  shall  be  liable  and  responsible 
as  at  the  common  law,  and  be  liable  to 
refund  the  increased  rate  of  charge." 
Sect.  4  enacts,  "  That  from  and  after  the 
first  of  September  now  next  ensuing, 
no  public  notice  or  declaration  hereto- 
fore made,  or  hereinafter  to  be  made, 
shall  be  deemed  or  construed  to  limit 
or  in  any  wise  affect  the  liability  at 
common  law  of  any  such  mail  con- 
tractor, stage-coach  proprietor,  or  other 
public  common-carriers  as  aforesaid,  for 
or  in  respect  of  any  articles  or  goods  to 
be  carried  and  conveyed  by  them,  but 
that  all  and  every  such  mail  con- 
tractors, stage-coach  proprietors,  and 
other  common-carriers  as  aforesaid, 
shall,  from  and  after  the  1st  Sep- 
tember, be  liable  as  at  the  common  law, 
to  answer  for  the  loss  of  [or]  any  injury 
to  any  articles  and  goods  in  respect 
whereof  they  may  not  be  entitled  to  the 
benefit  of  this  act,  any  public  notice  or 
declaration  by  them  made  and  given 
contrary  thereto,  or  in  anywise  limiting 
such  liability,  notwithstanding."  Sect. 
5  enacts,  "  Tliat  for  the  purposes  of  this 
act,  every  office,  warehouse,  or  receiv- 
ing-house, which  shall  be  used  or  ap- 
pointed by  any  mail  contractor  or  stage- 
coach proprietor  or  other  common-car- 
rier as  aforesaid,  for  the  receiving  of 
parcels  to  be  conveyed  as  aforesaid, 
shall  be  deemed  and  taken  to  be  the 
receiving-house,  wai-ehouse,  or  office, 
for  sucii  mail  contactor,  stage-coach 
proprietor,  or  other  common-carrier, 
and  that  any  one  or  more  of  such  mail 
contractors,  stage-coach  proprietors,  or 
common-carriers,  shall  be  liable  to  be 
sued  by  his,  her,  or  their  name  or  names 
only,  and  that  no  action  or  suit  com- 
menced to  recover  damages  for  loss  or 
injury  to  any  ])arcel,  package,  or  person, 
shall  abate  for  the  want  of  joining  any 
coproprictor  or  copartner  in  such  mail, 
stage-coach,  or  other  public  conveyance, 
by  land,  for  hire,  as  aforesaid."  Sect.  G 
enacts,  "  That  nothing  in  this  act  con- 
tained shall  extend  or  be  construed  to 
annul  or  in  anywise  aftect  any  special 
contract  between  such  mail  contractor, 
stage-coach  proprietor,  or  common-car- 
rier, and  any  other  parties,  for  the  con- 
veyance of  goods  and  merchandises." 

[736] 


The  act  contains  eleven  sections,  but 
the  other  five  are  not  very  material  to 
our  present  inquiry.  We  shall  have  occa- 
sion presently  to  notice  some  decisions 
upon  the  construction  of  this  statute. 
In  this  country  very  few  cases  appear 
to  have  arisen  upon  notices  of  the  kind 
that  we  are  now  speaking  of  Dicta 
may  be  found,  however,  sustaining 
them,  in  Orange  County  Bank  v. 
Brown,  9  Wend.  115,  and  in  Bean  v. 
Green,  3  Fairf  422,  and  they  were 
very  ably  vindicated  by  Mr.  Justice 
Cowen,  in  Cole  v.  Goodwin,  19  Wend. 
251.  Upon  the  whole,  in  the  language 
of  Mr.  Justice  Redfield,  "  we  regard  it 
as  well  settled,  that  the  carrier  may,  by 
general  notice,  brought  home  to  the 
owner  of  the  things  delivered  for  car- 
riage, limit  his  responsibility  for  carry- 
ing certain  commodities  beyond  the 
line  of  his  general  business,  or  he  may 
make  his  responsibility  dependent  upon 
certain  conditions,  as  having  notice  of 
the  kind  and  quantity  of  the  things  de- 
posited for  carriage,  and  a  certain  rea- 
sonable rate  of  premium  for  the  insur- 
ance, paid,  beyond  the  mere  expense  of 
carriage."  See  Farmers'  and  Mechanics' 
Bankr.  Champlain  Trans.  Co.  23  Verm. 
186,  206. — It  remains  that  we  consider 
to  ivhat  extent  a  carrier  may  exempt 
himself  from  his  common-law  liability, 
whether  by  notice  or  by  special  con- 
tract. This  question  first  arose  in  the 
cases  concerning  notices.  Many  of 
those  cases  we  have  already  cited  in  this 
note.  They  will  be  found,  upon  exam- 
ination, to  exhibit  a  considerable  degree 
of  uncertainty  and  contrariety  of  opinion 
upon  the  question.  Some  of  them  in- 
clined to  hold  that  a  non-compliance  by 
the  bailor  with  the  terms  of  the  notice 
was  a  fraud  on  his  part,  and  conse- 
quently that  the  carrier  was  liable  for 
nothing  short  of  direct  malfeasance; 
other  cases,  and  the  greater  number, 
held  the  carrier  liable  for  gross  negli- 
gence :  and  others  still,  held  him  liable 
for  ordinary  negligence.  No  certain  rule 
could  be  deduced  from  the  cases  until 
Wyld  V.  Pickford,  8  M.  &  W.  443.  In 
that  case  the  whole  subject  was  elabo- 
rately examined,  and  the  Court  of  Ex- 
chequer declared  that  the  carrier,  not- 
withstanding his  notice,  was  bound  to 


CH.   XII,] 


BAILMENT. 


714 


and  insist  that  his  baggage  shall  be  carried  under  the  respon- 
sibility which  the  law  creates;  and  if  the   carrier  refuses  to 


use  ordinary  care.  Parke,  B.,  said  :  — 
"  Upon  reviewing  the  cases  on  this 
subject,  tlie  decisions  and  dicta  will  not 
be  found  altogether  uniform,  and  some 
uncertainty  still  remains  as  to  the  true 
ground  on  which  cases  are  taken  out 
of  the  operation  of  these  notices.  In 
Bodenham  v.  Bennett,  (4  Price,  34,) 
Mr.  Baron  Wood  considers  that  these 
notices  were  introduced  for  the  purpose 
of  protecting  carriers  from  extraordi- 
nary events,  and  not  meant  to  exempt 
them  from  due  and  ordinary  care.  On 
the  other  hand,  in  some  cases  it  has 
been  said  that  the  carrier  is  not  by  his 
notice  protected  from  the  consequences 
of  misfeasance, — Lord  Ellcnborougli,  in 
Beck  V.  Evans,  (16  East,  247  ;)  and  that 
the  true  construction  of  the  words, 
'  lost  or  damaged,'  in  such  a  notice,  is, 
that  the  carrier  is  protected  from  the 
consequences  of  negligence  or  miscon- 
duct in  the  carriage  of  goods,  but  not  if 
he  divests  himself  wliolly  of  the  charge 
committed  to  his  care,  and  of  the  cha- 
racter of  carrier.  Bayleij  and  Holrojjd, 
J.  J.,  in  Garnett  v.  Willan,  (5  B.  &  Aid. 
57,  60.)  In  many  other  cases  it  is  said, 
he  is  still  responsible  for  '  gross  negli- 
gence ; '  but  in  some  of  them  that  term 
has  been  defined  in  such  a  way  as  to 
mean  ordinarj'  negligence,  (Story  on 
Bailments,  section  11,)  that  is,  the  want 
of  such  care  as  a  prudent  man  would 
take  of  his  own  property.  Best,  J.,  in 
Batson  v.  Donovan,  (4  B.  &  Aid.  30,) 
and  Dallas,  C.  J.,  in  Duff  v.  Budd.  (3 
Brod.  &  B.  182.)  The  weight  of  au- 
thority seems  to  be  in  favor  of  the  doc- 
trine, that  in  order  to  render  a  carrier 
liable  after  such  a  notice,  it  is  not 
necessary  to  prove  a  total  abandonment 
of  that  character,  or  an  act  of  wilful 
misconduct,  but  that  it  is  enough  to 
prove  an  act  of  ordinary  negligence,  — 
gross  negligence,  in  the  sense  in  which 
it  has  heen  understood  in  the  last-men- 
tioned cases  ;  and  that  the  effect  of  a 
notice,  in  the  form  stated  in  the  plea,  is 
that  the  carrier  will  not,  unless  he  is 
paid  a  premium,  be  responsible  for  all 
events  (other  than  the  act  of  God  and 
the  Queen's  enemies,)  by  which  loss  or 
damage  to  the  owner  may  arise,  against 
which  events  he  is  by  common  law  a 
sort  of  insurer;  but  still  he  undertakes 
to  carri/  from  one  place  to  another,  and 

62  * 


for  some  reward  in  respect  of  the  car- 
riage, and  is  therefore  bound  to  use 
ordinary  care  in  the  custody  of  the 
goods,  and  their  conveyance  to  and 
delivery  at  their  place  of  destination, 
and  in  providing  proper  vehicles  for 
their  carriage  ;  and  after  such  a  notice, 
it  may  be  that  the  burden  of  proof  of 
damages  or  loss  by  the  want  of  such 
care  would  lie  on  the  plaintiff."  We 
are  not  aware,  however,  that  any  of  the 
English  cases  have  expressly  held  that 
it  was  incompetent  for  a  carrier  to 
exempt  himself  by  notice  from  the  con- 
sequences of  his  own  negligence,  if  he 
used  terms  which  could  receive  no  other 
reasonable  construction.  But  however 
this  may  be,  a  series  of  English  cases 
since  the  Carriers  Act,  and  within  the 
last  two  years,  seem  to  have  settled  the 
point  there  that  it  is  competent  for  a 
carrier  by  an  express  contract  between 
himself  and  his  bailor  to  exempt  him- 
self from  liability  for  any  thing  short  of 
actual  malfeasance.  The  first  of  these 
cases  which  it  is  necessary  to  cite  is  that 
of  Chippendale  v.  The  L.  &  Y.  Kail- 
way  Co.,  7  E.  L.  &  E.  395,  in  the 
Queen's  Bench.  There  the  plaintiff 
who  had  some  cattle  conveyed  by  a 
railway  company,  received  for  them  a 
ticket,  which  he  signed,  containing  the 
terms  on  which  the  railway  company 
carried  the  cattle.  At  the  foot  of  the 
ticket  tliere  was  a  clause:  "  N.  B. — 
This  ticket  is  issued  subject  to  the 
owner  undertaking  all  risk  of  convey- 
ance whatever,  as  the  company  will  not 
be  liable  for  any  injury  or  damage, 
howsoever  caused,  and  occurring  to 
live  stock  of  any  description  travelling 
upon  the  L.  and  Y.  railway,  or  in  tlieir 
vehicles."  Tlie  plaintiff  saw  the  cattle 
put  into  the  truck.  During  tiic  journey 
some  of  the  cattle  got  alarmed  and 
broke  out  of  the  truck  and  were  in- 
jured. The  truck  was  so  defectively 
t:onstructed  as  to  be  unfit  and  unsafe 
for  tlie  conveyance  of  cattle.  Held, 
that  there  was  no  implied  stijiulation 
that  the  truck  should  be  fit  for  the  con- 
veyance of  cattle :  and  tliat  the  com- 
pany were  protected  by  tiic  terms  of 
tiie  "ticket  from  liability  to  the  plaintiff 
for  the  damage  to  the  cattle.  It^  should 
be  o!)servcd,  however,  that  Erie,  J., 
places  some  stress  upon  tiie  fact  that 

[737] 


715 


THE  LAW  OF   CONTRACTS. 


BOOK  III. 


take  the  goods,  he  will  render  himself  liable  to  an  action.    But 
if  the  notice  be  only  a  limited  and  qualified  notice,  and  in 


the  contract  was  for  the  carriage  of  live 
stock.  He  says:  —  "  I  think  that  a  lim- 
itation, however  wide  in  its  terms,  being 
in  respect  of  live  stock,  is  reasonable; 
for  though  domestic  animals  might  be 
carried  safely,  it  might  be  almost  im- 
possible to  carry  wild  ones  without  in- 
jury."  See  also  Morville  v.  The  Great 
Northern  Eailway  Co.,  10  E.  L.  &  E. 
366.  Then  followed  the  cases  of  Austin 
V.  The  M.,  S.,  &  L.  Eailway  Co.,  1 1  E. 
L.  &  E.  506,  in  the  Common  Bench, 
and  Carr  v.  The  L.  &  Y.  Railway  Co., 
14  E.  L.  &  E.,  340,  in  the- Exchequer, 
both  decided  the  same  day.  In  the 
former  case  a  railway  companj-,  letting 
trucks  for  hire,  for  the  conveyance  of 
horses,  delivered  to  the  owner  of  the 
horses  a  ticket,  in  which  it  was  stated 
that  tiie  owners  were  to  undertake  all 
risks  of  injury  by  conveyance  or  other 
contingencies  ;  and  further  stipulated 
that  the  company  would  not  be  liable 
for  any  damages,  however  caused,  to 
horses  or  cattle.  The  horses  received 
damage  through  the  breaking  of  an 
axle,  which  was  attributable  to  the  cul- 
pable negligence  of  the  company's  ser- 
vants. A  verdict  having  bean  found  for 
the  plaintiff,  a  rule  nisi  was  obtained 
for  arresting  the  judgment.  Upon  the 
argument,  the  counsel  in  support  of  the 
rule  insisting  that  the  defendants  were 
protected  from  all  liability  by  their  no- 
tice, Jervis,  C.  J.,  said  :  —  "  Must  they 
not  act  as  common-cax-riers,  except  so 
far  as  they  limit  their  liability  by  the 
ticket  ?  It  seems  an  alarming  proposi- 
tion to  say  that  they  can  exempt  them- 
selves  from  all   liability.     If  they  are 

*  allowed  to  do  it  in  respect  of  goods, 
why  should  they  not  be  able  to  do  it  in 
the  case  of  passengers  ?  Supposing 
they  were  to  be  treated  as  gratuitous 

•  bailees,  would  they  not  be  liable  for 
gross  negligence?"  But  after  taking 
time  to  consider,  the  rule  was  made  ab- 
solute, Cresswell,  J.,  delivering  the  judg- 
ment of  the  court  in  an  elaborate  opi- 
nion.   In  Carr  v.  The  L.  &  Y.  Railroad 

■  Co.,  the  plaintiff  being  the  owner  of  a 
horse  delivered  it  to  Ae  defendants,  a 
railway  company,  to  be  carried  on  their 
railway,  subject  to  conditions  which 
stated"^  that  the  owners  undertook  all 
risks  of  conveyance  whatsoever,  as  the 
company  would  not  be  responsible  for 
[738] 


any  injury  or  damage,  however  caused, 
accruing  to  live  stock  of  any  description 
travelling  on  the  railway.  The  horse 
having  been  injured  by  the  horsebox 
being  propelled  against  some  trucks 
through  the  gross  negligence  of  the 
company  :  —  "  Held,  lupsiiante  Piatt,  B., 
that  the  company,  under  the  terms  of 
the  contract,  were  not  responsible  for 
the  injury.  Untquare,  per  Alderson,  B., 
whether  the  company  would  have  been 
responsible  if  the  horse  had  been  stolen. 
Parke,  B.,  said :  —  "  The  question  in 
this  case  turns  upon  the  notice  which 
was  given  by  the  defendants,  and  which 
forms  the  foundation  of  the  contract 
between  the  parties.  It  is  plain  that 
since  the  passing  of  the  Carriers  Act,  it 
is  competent  for  carriers  to  make  a  spe- 
cial contract.  Such  a  contract  was  made 
in  this  case,  and  the  only  question  is  as 
to  the  meaning  of  that  contract.  Ac- 
cording to  the  old  cases,  there  was  this 
limitation  upon  the  construction  of  car- 
riers' notices,  that  unless  a  carrier  ex- 
cluded his  liability  in  express  terms,  ac- 
cording to  the  ordinary  terms  of  the 
notice,  he  would  be  responsible  for  gross 
negligence.  The  practice  of  a  carrier 
protecting  himself  by  notice,  was  put  an 

end  to  by  the  Carriers  Act 

Prior  to  the  establishment  of  railways 
the  court  were  in  the  habit  of  constru- 
ing contracts  between  individuals  and 
carriers,  much  to  the  disadvantage  of 
the  latter.  Before  railways  were  in  use 
the  articles  conveyed  were  of  a  different 
description  from  what  they  are  now. 
Sheep  and  other  live  animals  are  now 
carried  tipon  railways,  and  horses 
which  were  used  to  draw  vehicles  are 
now  themselves  the  objects  of  convey- 
ance. Contracts,  therefore,  are  now 
made  with  reference  to  the  new  state  of 
things,  and  it  is  very  reasonable  that 
carriers  should  be  allowed  to  make 
agreements  for  the  purpose  of  protect- 
ing themselves  against  the  new  risks  to 
Avhich  they  are  in  modern  times  exposed. 
Horses  are  not  conveyed  on  railways 
without  •  much  risk  and  danger  ;  the 
rapid  motion,  the  noise  of  the  engjne, 
and  various  other  matters  are  apt  to 
alarm  them  and  to  cause  them  to  do 
injury  to  themselves.  It  is,  therefore, 
very  reasonable  that  carriers  should  pro- 
tect themselves  against  loss  by  making 


CH.    XII.] 


BAILMENT. 


^16 


itself  reasonable,  the  sender,  having  knowledge  of  it,  is  bound 
by  it.  Nor  can  he  insist  that  the  carrier  shall  receive  and 
transport  his  goods  without  reference  to  it. 


special  contracts.  The  question  is, 
whether  they  have  done  so  here.  The 
jury  have  found  that  the  defendants 
liave  been  guilty  of  gross  negligence, 
and  that  must  "be  taken  as  a  fact.  In 
my  opinion,  the  owner  of  the  horse  has 
taken  upon  himself  the  risk  of  convey- 
ance, the  railway  company  being  bound 
merely  to  find  carriages  and  propelling 
power  ;  the  terms  of  the  contract  appear 
to  me  to  show  this.  The  company  say 
they  will  not  be  responsible  for  any  in- 
jury or  damage  (however  caused)  occur- 
i"ing  to  live  stock  of  any  description, 
travelling  upon  their  railway.  This, 
then,  is  a  contract,  by  virtue  of  which 
the  plaintiff  is  to  stand  the  risk  of  acci- 
dent or  injury,  and  certainly,  when  we 
look  at  the  nature  of  the  things  con- 
veyed, there  is  nothing  unreasonable  in 
the  arrangement.  In  the  case  of  Austin 
V.  The  Manchester,  Sheffield,  &  Lincoln- 
shire Railway  Company,  20  Law  J.  Rep. 
(N.  S.)  Q.  B.  440;  (S.  C.  5  Eng.  Reps. 
329,)  the  language  of  the  contract  was 
different  from  the  present,  but  not  to  any 
great  extent.  (His  lordship  stated  tlie 
case.)  In  that  case,  the  accident  was 
occasioned  by  the  wheels  not  being  pro- 
perly greased ;  in  the  present  case,  the 
carriage  that  contained  the  plaintiff's 
horse  was  driven  against  another  cai'- 
riage.  We  ought  not  to  fritter  away 
the  meaning  of  contracts  merely  for  the 
purpose  of  making  men  careful.  That 
is  a  matter  that  we  are  not  bound  to 
correct.  The  legislature  may,  if  they 
please,  put  a  stop  to  contracts  of  this 
kind,  but  we  have  nothing  to  do  with 
them  except  to  interpi-et  them  wlicn 
they  are  made."  Alcleison,  B. : —  "  The 
defendants  in  this  case  undertook  to 
carry  the  goods  in  question  on  certain 
terms.  The  question  then  is,  wiiat  arc 
those  terras  1  It  is  clear  tiiat  they  are 
such  as  the  defendants  might  lawfully 
make.  It  is  plain  to  me  that  they 
undertook  to  carry  the  horse  at  the 
risk  of  the  plaintiff.  The  words  are, 
'  the  owners  undertaking  all  risk  of  con- 
veyance whatsoever.'  Now,  under  those 
terms  a  question  might  be  raised  whether 
the  injury  contemplated  was  such  as 
must  issue  in  injury  to  the  tiling  con- 
veyed ;  so  that  a  doubt  might  arise 
whether  the   case   of  the  horse  being 


stolen  was  contemplated,  as  under  such 
circumstances  the  accident  would  not 
issue  in  damage  to  the  horse.  But  that 
question  M'ould  not  arise  here,  as  in  this 
case  the  horse  itself  has  been  injured. 
The  result  is,  that  if  there  has  been 
gross  negligence,  on  the  part  of  the  de- 
fendants, they  are  protected  against 
liability  by  virtue  of  the  words  of  the 
contract."  Piatt,.  B. :  —  "  Tlie  declara- 
tion states  that  the  defendants  were 
guilty  of  gross  negligence,  and  that  fact 
was  proved.  The  (jravaimn  of  the 
charge  is  the  gross  negligence.  Now 
undoubtedly,  since  the  establishment  of 
raihvays,  new  subjects  of  conveyance 
have  arisen.  Formerly,  horses  were 
seldom  carried,  but  now  they  are  ordi- 
narily conveyed  by  the  trains.  It  is, 
therefore,  said  that  new  stipulations  are 
necessary  to  guard  carriers  from  risks 
which  are  incidental  to  this  new  mode 
of  conveyance.  It  is  suggested  that 
the  animal  may  be  alarmed  by  the  noise 
of  the  engine,  by  the  speed  of  the  car- 
riages, and  by  various  other  causes,  and 
that  unless  we  take  upon  ourselves  the 
office  of  legislation,  this  ticket  absolves 
the  carriers  from  all  responsibility.  I 
own  I  am  startled  at  such  a  proposi- 
tion, and  considering  the  high  authority 
by  which  it  is  supported,  I  feel  I  ought 
to  doubt  and  to  distrust  my  own  opinion. 
But  I  am  bound  to  say  that  I  am  not 
satisfied  that  the  language  of  this  ticket 
absolves  tlie  railway  company  from  all 
liability  for  damage.  I  cannot  help 
thinking  that  the  owner  of  the  goods 
never  dreamed  of  such  a  thing  when  he 
signed  this  contract.  In  truth,  this 
accident  had  nothing  to  do  with  the 
conveyance  of  the  horse.  The  acci- 
dents referred  to  are  those  which  occur 
whilst  the  article  is  in  a  state  of  loco- 
motion. The  case  of  gross  negligence, 
as  it  seems  to  me,  is  not  jjointed  at  by 
this  contract."  Martin,  B. :  —  "I  agree 
in  opinion  with  my  brothers  Parke  and 
Alderson.  This  is  the  case  of  a  special 
contract  which  the  plaintiff  has  adopted 
and  assented  to.  Without  doubt,  .it 
common  law,  a  carrier  is  entitled  to 
make  a  special  contract.  If,  indeed,  he 
refuses  to  carry  goods,  except  on  the 
terms  of  a  special  contract,  he  is  liable 
to  an  action  ;  but  if  he  makes  n  special 
[739J 


717 


THE   LAW   OF   CONTRACTS. 


[book   III. 


The  question  has  arisen,  whether,  where  a  reasonable  and 
legal  notice  has  been  given  to  the  sender,  there  still  rests  on 


contract  it  must  be  abided  by.  The 
Carriers  Act  says  that  a  special  con- 
tract may  be  made.  It  i.s,  tiien,  our 
duty  to  see  what  contract  the  parties 
have  made.  Insurers  are  answerable 
for  gross  negligence,  and  if  goods  may 
be  insured,  others  may  contract  that 
they  Avill  not  be  answerable  for  their 
own  gross  negligence.  In  this  case,  the 
language  used  by  the  parties  cannot  be 
stronger  than  it  is.  I  am  unable  to 
say  what  was  passing  in  the  mind  of 
the  owner  of  the  horse.  I  am  to  look 
only  at  the  terms  of  the  notice,  and  if 
the  carrier  had  been  desirous  of  prepar- 
ing a  contract  by  which  he  would  get 
rid  of  his  liability  in  respect  of  gross 
negligence,  he  could  not  have  used 
more  apt  words  than  those  that  are 
contained  in  this  notice.  With  respect 
to  the  argument  of  inconvenience,  the 
answer  is,  that  we  have  nothing  to  do 
except  to  carry  out  this  contract ;  the 
parties  concerned,  and  not  ourselves,  are 
to  judge  of  the  inconvenience.  If  we 
hold  the  carriers  in  this  case  responsible 
for  gross  negligence,  we  shall  place 
them  in  the  situation  of  insurers  and 
underwriters.  There  are,  indeed,  in- 
conveniences attending  either  mode  of 
construing  the  contract,  but,  in  my 
opinion  the  defendants  are  not  answer- 
able under  this  contract  for  any  risk 
arising  from  gross  negligence."  In  this 
country,  however,  it  would  seem  to  be 
pretty  nearly,  if  not  quite  settled,  that 
it  is  incompetent  for  a  carrier,  either  by 
notice  or  express  contract,  to  exempt 
himself  from  liability  for  his  own  neg- 
ligence. The  strongest  case  that  we 
have  seen  to  this  effect  is  the  late  case 
of  Sager  v.  The  Portmouth  &e.  II. 
R.  Co.,  31  Maine,  22S.  There  the 
defendants  had  transported  the  plain- 
tiff's horse  from  Boston  to  Portland. 
It  was  upon  a  cold  day  in  November. 
The  horse  was  can-ied  in  an  open  car, 
and  suffered  serious  injury  from  the  expo- 
sure to  the  cold.  This  action  was  brought 
to  recover  damages  for  that  injury.  The 
defendants  introduced  a  paper  signed 
by  the  plaintiff,  whereby  he  agreed  to 
exonerate  the  company  from  all  da- 
mages that  might  happen  to  any  horses, 
oxen,  or  other  live  stock  that  he  should 
send  over  the  company's  road ;  mean- 
ing thereby,  that  he  took  the  risk  upon 

[740] 


himself  of  all  and  any  damages,  that 
might  happen  to  his  horses,  cattle,  &c. ; 
and  that  he  would  not  call  upon  said 
company  or  any  of  their  agents  for  any 
damages  whatever.  At  the  trial  the 
learned  judge  instructed  the  jurj'  that 
this  contract  would  not  exempt  the  com- 
pany from  liability  for  their  own  mal- 
feasance, misfeasance,  or  negligence. 
And  this  instruction  was  held  correct. 
Sheplei/,  C.  J.,  after  speaking  of  the  con- 
struction put  upon  notices  b}-  the  English 
courts,  said  :  —  "  The  notices  were  usu- 
ally given  in  terms  so  general,  that  a 
hteral  construction  of  the  contract  thus 
arising  out  of  them,  would  have  ex- 
onerated the  carriers  from  liability  for 
their  own  misfeasance  or  negligence, 
and  for  that  of  their  servants.  Yet  the 
well  established  construction  of  them 
has  been,  that  they  were  not  thereby 
relieved  from  their  liability  to  make 
compensation  for  losses  thus  occasion- 
ed." The  learned  judge  then  proceed- 
ed to  an  examination  of  the  authorities  ; 
and,  having  stated  that  the  court  had 
formerly  declared  that  the  power  of 
carriers  to  limit  the  liability  imposed 
upon  them  by  law  should  not  be  iavored 
or  extended,  he  continued  :  '•  If  a  lite- 
ral construction  of  the  agreement  sign- 
ed by  the  plaintiff  would  exonerate  the 
defendants  from  losses  occasioned  by 
the  negligence  of  their  servants,  it  will 
be  perceived,  that  it  could  not  be  per- 
mitted to  have  that  effect  without  a 
violation  of  established  rules  of  con- 
struction, and  without  a  disregard  of 
the  declared  intention  of  this  court  not 
to  extend  the  restriction  of  the  lia- 
bility of  common-carriers.  The  very 
great  danger  to  be  anticipated,  by  per- 
mitting tliem  to  enter  into  contracts  to 
be  exempt  from  losses  occasioned  by 
misconduct  or  negligence,  can  scarcely 
be  over-estimated.  It  would  remove 
the  principal  safeguard  for  the  preserva- 
tion of  life  and  property  in  such  con- 
veyances. It,  however,  requires  no 
forced  construction  of  that  agreement, 
to  regard  it  as  effectual  to  place  the  de- 
fendants in  the  position  of  bailees  for 
hire,  and  as  not  exonerating  them  from 
liability  for  losses  occasioned  by  misfea- 
sance or  negligence.  The  latter  clause, 
'  we  will  not  call  upon  the  railroad 
company  or  any  oflheir  agents  for  any 


CH.  XII.] 


BAILMENT. 


718 


the  carrier  the  obligation  of  a  special  inquiry  ;  so  that  with- 
out such  inquiry  the  sender  may  transmit  or  the  passenger 
may  take  his  goods  in  silence,  and  have  them  covered  by  the 
same  responsibility  as  if  he  had  complied  with  the  notice, 
and  had  stated  the  extra  value  of  the  goods,  and  paid  the 
extra  price.  We  cannot  doubt  that  the  weight  of  authority, 
as  of  reason  and  of  justice,  is,  that  such  notice  makes  such 
inquiry  unnecessary,  and  that  the  owner  of  the  goods  would 
in  such  case  be  considered  either  as  taking  the  risk  upon 
himself,  or  as  endeavoring  to  cast  it  fraudulently  upon  the 
carrier.  (?) 


damages  whatsoever,'  considered  with- 
out reference  to  the  preceding  hinguage, 
would  be  sufficiently  broad  to  excuse 
them  from  making  compensation  for 
losses  occasioned  by  wilful  misconduct. 
It  is  most  obvious  that  such  could  not 
have  been  the  intention ;  and  that  the 
true  meaning  and  intention  was,  that 
they  would  not  call  upon  them  for  an}' 
damages  whatsoever,  '  that  may  happen 
to  any  horses,  oxen,  or  any  other  live 
stock,  that  we  send  or  may  send  over 
said  company's  railroad.'  The  inten- 
tion of  the  parties,  by  the  use  of  the 
language  contained  in  this  last  clause, 
is  then  attempted  to  be  explained  as 
follows  :  —  meaning  by  this,  that  we 
will  take  the  risk  upon  ourselves  of  all 
and  an}'  damages,  that  may  liappeu  to 
our  horses,  cattle,  &e.  The  meaning  of 
damages  ha])pcningto  live  animals  is  to 
be  sought.  The  word,  happen,  is  defined 
by  the  words,  to  come  by  chance,  to  fall 
out,  to  befall,  to  come  unexpectedly. 
An  accident,  or  that  which  happens  or 
comes  by  chance,  is  an  event,  which  occurs 
from  an  unknown  cause,  or  it  is  the  un- 
usual ed'ect  of  a  known  cause.  Tliis  will 
exclude  an  event  produced  by  miscon- 
duct or  negligence,  for  one  so  produced  is 
ordinarily  to  be  expected  from  a  known 
cause.  Misconduct  or  negligence  under 
such  circumstances  would  usually  be  pro- 
ductive of  such  an  event.  Lord  Ellen- 
borough,  in  the  case  of  Lyon  v.  Mells,  (.5 
East,  428,)  speaking  of  what  'may  or 
may  not  happen,'  explains  it  as,  '  that 
which  may  arise  from  accident  and  de- 
pends on  chance.'  An  injury  occasioned 
by  negligence,  is  the  effect  ordinai-ily  to 
be  expected  as  the  consequence  of  that 
negligence,  without  reference  to  any 
accident  or  cliance.  A  correct  con- 
struction of   the    agreement    will   not 


therefore  relieve  the  defendants  from 
their  liability  for  losses  occasioned  by 
the  misfeasance  or  negligence  of  their 
servants."  So  in  Reno  v.  Hogan,  12 
B.  Monr.  63,  the  carriers  received  a  box 
of  glass,  with  a  clause  in  the  bill  of 
lading,  that  they  should  not  be  "  ac- 
countable for  breakage."  On  its  arrival 
at  the  place  of  destination,  the  glass 
was  found  broken  into  small  fragments, 
which  was  proved  to  have  been  caused 
by  the  gross  negligence  of  the  defend- 
ant or  his  servants.  The  court,  while 
admitting  the  validity  of  the  special 
contract,  held  that  its  provisions  did  not 
apply  to  injuries  arising  from  gross 
negligences.  Opinions  and  dicta  to 
the  same  effect  will  be  found  in  Dorr 
V.  N.  J.  Steam  Nav.  Co.,  4  Sandf.  136; 
Stoddard  v.  Long  Island  E.  11.  Co.  5 
Sandf  180  ;  Laingi'.  Colder,  8  Harr,470; 
N.'J.  Steam  Nav.  Co.  v.  Merchants'  Bank, 
6  How.  344  ;  Slocum  v.  Fairchild.  7  Hill, 
292  ;  Swindler  i».-Hilliard,  2  llich.  286  ; 
Parsons  v.  Monteath,  13  Barb.  353; 
Stoddard  v.  Long  Island  R.  R.  Co.,  5 
Sandf.  ISO;  Camden  &  Amboy  R.  R. 
Co.  V.  Baldauf,  16  Penn.  State  Rep.  67. 
Sec  also  the  notes  of  the  learned  Amer- 
ican editors  to  Austin  v.  The  M.,  S-, 
and  L.  Railway  Co.,  11  E.  L.  &  E.  506, 
and  Carr  v.  Tiic  L.  &  Y.  Railwav  Co., 
14  Id.  340.  Sec  also  Shaw  v.  York  & 
No.  Midland  Railway,  13  Q.  B.  353; 
jMorville  v.  Great  Nortiiern  Railwav  Co. 
10  E.  L.  &  E.  366.—  In  Englantl  it  has 
been  held  after  much  consideration  that 
notices  published  in  pursuance  of  the 
Carriers  Act.  if  not  complied  with,  ex- 
empt the  carrier  from  JiaHiiity  for  rjross 
negligence.  Hinton  v.  Dibbin,  2  Q.  B. 
G46.  See  also  Owen  v.  Burnett,  2  Cro. 
&  M.  353. 

(/)  It  would  he  of  no  avail  for  a  car- 

[741] 


719 


THE   LAW   OF   CONTRACTS. 


[book  III. 


SECTION  XV. 


OF  FRAUD. 


All  fraud,  or  wilful  misrepresentation,  or  intentional  con- 
cealment, on  the  part  of  the  sender  of  goods,  or  of  the  pas- 
senger, extinguishes  the  liability  of  the  common-carrier,  so 
far  as  it  is  affected  by  such  misconduct ;  and  this  must  be 
equally  true  whether  the  fraud  consists  in  the  disregard  of  a 
notice,  or,  where  there  is  no  notice,  of  an  intention  to  cast 
upon  the  carrier  a  responsibility  which  he  is  not  obliged  to 


rier  to  publish  a  notice  if  he  was  still 
bound  to  make  a  special  inquiry;  for 
this  he  may  do  without  publishing  a 
notice,  and  the  bailor  must  inform  him 
correctly,  at  his  peril.  That  a  notice 
brought  to  the  knowledge  of  the  bailor 
dispenses  with  any  further  inquiry,  see 
Batson  v.  Donovan,  4  B.  &  Aid.  21  ; 
Marsh  v.  Home,  5  B.  &  Cr.  322  ;  Duff 
V.  Budd,  3  Brod.  &  Bing.  177;  Harris 
V.  Packwood,  3  Taunt.  264  ;  Bodenham 
V.  Bennett,  4  Price,  31  ;  Garnett  v. 
Willan,  5  B.  &  Aid.  53  ;  Sleat  v.  Fagg, 
Id.  342.  But  see  the  remarks  of  Bron- 
son,  J.,  contra,  in  HoUister  v.  Nowleu, 
19  Wend.  234.  So  vmder  the  Carriers 
Act,  it  is  held  to  be  the  duty  of  the 
sender  of  goods  therein  enumerated,  and 
exceeding  .£10  in  A'alue,  to  take  the  ini- 
tiative by  giving  notice  to  the  carrier  of 
their  value  and  nature,  in  order  to 
charge  the  latter  in  respect  of  their  loss  ; 
and  this  whether  the  goods  be  delivered 
at  the  office  of  the  carrier  or  not.  Bax- 
endale  v.  Hart,  9  E.  L.  &  E.  505,  6 
Id.  468.  — But  the  carrier  will  be  held 
to  very  strict  proof  that  the  notice  was 
brought  to  the  knowledge  of  the  bailor. 
HoUister  v.  Nowlen,  10  Wend.  234; 
Brooke  v.  Pickwick,  4  Bing.  218 ;  Bean 
V.  Green,  3  Fairf.  422  ;  Riley  v.  Home, 
5  Bing.  217  ;  Clayton  v.  Hunt,  3  Camp. 
27;  Cobden  v.  Bolton,  2  Camp.  108; 
Butler  V.  Heane,  Id.  415  ;  Kerr  v.  Wil- 
lan, 2  Stark.  «3  ;  Davis  v.  Willan,  2 
Stark.  279.  In  Camden  &  Amboy 
Railroad  Co.  v.  Baldauf,  16  Penn.  State 
Rep.  67,  where  the  notice  was  in  the 
English  language,  and   the  passenger 

[742] 


was  a  German,  who  did  not  understand 
English,  it  was  held  incumbent  on  the 
carrier  to  prove  that  the  passenger  had 
actual  knowledge  of  the  limitation  in 
the  notice.  But  the  strongest  case  to 
be  found  upon  this  point  is  that  of 
Brown  v.  Eastern  Railroad  Co.,  decided 
by  the  Supreme  Court  of  Massachu- 
setts, March  Term,  1851,  a  brief  note 
of  wliich  is  given  in  6  Law  Rep.  N.  S. 
39.  It  was  an  action  of  assumpsit  for 
lost  luggage.  There  was  a  notice  print- 
ed on  the  back  of  the  passage  ticket 
given  to  the  plaintiff,  that  the  defend- 
ants would  not  be  responsible  beyond  a 
specified  sum  ;  but  no  other  notice  was 
given,  nor  was  her  attention  called  to 
this.  Held,  that  if  a  common-carrier 
can  limit  his  responsibility  in  this  way, 
it  must  be  clearly  shown  that  the  other 
part}'  is  fully  informed  of  the  terms  and 
effect  of  the  notice ;  and  that  the  facts 
in  this  case  did  not  furnish  that  certain 
notice  which  must  be  given  to  exone- 
rate such  carrier  from  his  liability.  This 
question  is  put  an  end  to  in  EngUmd  by 
the  Carriers  Act,  the  mere  publication 
in  pursuance  of  the  statute  being  held 
to  be  constructive  notice  to  all.  Bax- 
endale  v.  Hart,  9  E.  L.  &  E.  506,  6 
Id.  468.  —  So  the  notice  must  be  clear 
and  explicit,  and  if  ambiguous  will  be 
construed  against  the  carrier.  Beck- 
man  V.  Shouse,  5  Rawle,  179;  Camden 
&  Amboy  Railroad  Co.  v.  Baldauf, 
16  Penn.  State  Rep.  67 ;  Barney  v. 
Prentiss,  4  H.  &  Johns.  317.  So  if  there 
are  two  notices,  he  will  be  bound  by 
the  one  least  beneficial  to  him.     Cob- 


CH.  XII.] 


BAILMENT. 


720 


assume,  which  he  does  not  know  of,  and  against  which  he 
cannot  therefore  take  the  proper  precautions,  (j) 

*  Indeed,  the  principle  that  the  carrier  is  bound  only  by  a 
responsibility  which  he  knows  and  can  provide  for,  seems  to 
be  the  principal  cause  of  a  recent  modification  of  his  liability 
in  respect  to  the  baggage  of  a  passenger,  which  appears  now 
to  be  quite  well  settled.  It  may  be  stated  thus  ;  the  com- 
mon-carrier of  passengers  is  not  liable  as  such  for  the  loss  of 
their  baggage,  beyond  that  amount  which  he  might  reason- 
ably suppose  such  passenger  would  carry  with  him  ;  nor  for 
property  such  as  is  not  usually  included  within  the  meaning 
of  baggage.  Thus,  not  for  goods  carried  by  way  of  merchan- 
dise ;  (/»;)  nor  for  a  larger  sum  of  money  than  the  passenger 
might  reasonably  take  on  such  a  journey  for  his  expenses,  (l) 


deu  V.  Bolton,  2  Camp.  108 ;  Mimn  v. 
Baker,  2  Stark.  255. 

(j)  Gibbon  V.  Paynton,  4  Burr.  2298; 
Kenrig  v.  E.f^gleston,  Aleyn,  93  ;  Tyly 
?',  Morrice,  Carth.  485  ;  Anon,  cited  by 
Hale,  C.  J.,  in  Morse  v.  Slue,  1  Vent. 
238 ;  Titchburne  v.  White,  1  Str.  145. 
And  see  Batson  v.  Donovan,  4  B.  & 
Aid.  22. 

(k)  Therefore  the  word  "baggage"  has 
been  held  not  to  include  a  trunk  con- 
taining valuable  merchandise  and  no- 
thing else,  although  it  did  not  appear 
that  the  plaintiff  had  any  other  trunk 
with  him.  Pardee  v.  Drew,  25  Wend. 
459.  So  in  Hawkins  v.  Hoftman,  G 
Hill,  586,  it  was  held  that  the  term 
"  baggage  "  did  not  embrace  samples  of 
merchandise  carried  by  a  passenger  in 
a  trunk,  with  a  view  of  enabling  him  to 
make  bargains  for  the  sale  of  goods. 
But  in  Porter  v.  Hildebrand  14  Penn. 
State  Picp.  129,  where  the  plaintiff  was 
a  carpenter,  moving  to  tiic  State  of 
Ohio,  and  his  trunk  contained  carpen- 
ter's tools  to  the  value  of  $55,  which  the 
jury  found  to  be  the  reasonable  tools  of 
a  carpenter,  it  was  held  that  he  was  en- 
titled to  i-ecover  their  value.  See  also 
Dwight  V.  Brewster,  1  Pick.  50  ;  Beck- 
man  I'.  Shouse,  5  llawlc,  179  ;  Bomar 
V.  Maxwell,  9  Humph.  G21  ;  Great 
Northern  Railway  Co.  v.  Sheplierd,  9 
E.  L.  &  E.  477, 14  Id.  3G7  ;  Mad  River 
and  Lake  Erie  Railroad  Co.  v.  Fulton, 
20  Ohio.  318. 

(/)    Thus,   in    the    case    of   Orange 


County  Bank  v.  Brown,  9  Wend.  85,  it 
was  held  that  the  owner  of  a  steamboat 
used  for  carrying  passengers  was  not 
liable  for  a  trunk,  containing  upwards 
of  Sill,000  in  bank  bills,  brought  on 
board  by  a  passenger  as  baggage,  the 
object  being  the  transportation  of  mo- 
ney. And  in  Hawkins  v.  Hoffman,  6 
Hill,  58G,  it  was  doubted  by  Branson.  J., 
whether  money  to  pay  travelling  ex- 
penses could  be  included  within  the 
term  baggage.  "  IMcn,"  says  lie,  "usu- 
ally carry  money,  to  pay  their  travelling 
expenses,  about  their  persons,  and  not 
in  their  trunks  or  boxes  ;  and  no  con- 
tract can  be  implied  beyond  such  tilings 
as  are  usually  carried  as  baggage." 
It  is,  however,  well  settled  thi^t  a  tra- 
veller may  cany,  as  a  part  of  his  bag- 
gage, a  reasonable  amount  of  money  to 
pay  his  expenses.  Thus,  in  Jordan  t*. 
Pall  River  Railroad  Co.  5  Cush..G9,  it 
was  held  that  common-carriers  of  pas- 
sengers arc  responsible  for  money  hand 
Jide  included  in  the  baggage  of  a  pas- 
senger for  travelling  expenses  and  ])cr- 
sonal  use,  to  an  amount  not  exceeding 
what  a  prudent  person  would  deem  ])ro- 
])cr  and  necessary  for  the  purpose.  And 
Fletcher,  J.,  after  a  critical  examination 
of  the  case,  said:  —  "Upon  considera- 
tion of  the  whole  subject,  and  referring 
to  the  cases,  the  court  have  come  to  the 
conclusion,  that  money  bond  Jide  taken 
for  travelling  expenses  and  personal 
use  may  properly  be  regarded  as  form- 
ing a  part  of  a  traveller's  baggage.  The 

[743] 


721-*722 


THE  LAW   OF   CONTRACTS. 


BOOK  III. 


But  there  may  be  special  articles,  as  fishing  gear,  or  sporting 
apparatus,  which  one  carries  for  his  amusement;  (m)  and  in 
*  these  and  other  cases  it  may  often  be  very  difficult  to  draw 
the  line  between  what  would  come  within  the  liability  of 
the  carrier,  and  what  would  not.  The  question  would  not 
only  be  materially  affected  by  circumstances,  but  is  one  of 
those  upon  which  different  individuals  would  be  very  likely 
to  differ ;  and  it  is  perhaps  impossible  to  fix  upon  any  thing 
like  a  definite  standard.  But  the  principle  is  plain  enough, 
and  the  reason  and  justice  of  it  are  undeniable.  And  the 
difficulty  in  the  application  of  the  principle,  whether  by  the 
court  or  by  the  jury,  is  of  a  kind  which  must  often  occur  in 
the  administration  of  the  law.  It  must  always  be  a  question 
of  mixed  law  and  fact;  where  the  court  state  the  principle. 


-  time  has  been,  in  our  country,  when  the 
character  and  credit  of  our  local  cur- 
rency were  such,  that  it  was  expedient 
and  needful,  for  persons  travelling 
through  different  States,  to  provide 
themselves  with  an  amount  of  specie, 
which  could  not  conveniently  be  car- 
ried about  the  person,  to  defray  travel- 
ling expenses.  But  even  if  bills  are 
taken  for  this  purpose,  it  may  be  con- 
venient and  suitable  that  they  should 
be,  to  some  amount,  placed  in  a  tra- 
velling trunk,  with  other  necessary  ar- 
ticles for  personal  use.  This  would 
seem  but  a  reasonable  accommodation 
to  the  traveller.  It  has  been  objected, 
that  the  carrier  will  not  expect  that 
there  will  be  money  with  the  baggage, 
and  will  not  therefore  be  put  upon  his 
guard.  But  surely  a  carrier  may  very 
naturally  understand  and  expect,  that 
a  passenger  will  place  his  money  for 
expenses,  or  some  part  of  it,  in  his 
trunk,  instead  of  carrying  it  all  about 
his  person  ;  he  certainly  might  as  natu- 
rally expect  this  as  that  there  would  be 
jewels  or  a  watch  in  a  travelling  trunk, 
for  which  articles  a  carrier  has  been 
held  responsible.  The  passenger  is  not 
bound  to  give  notice  of  the  contents  of 
his  trunk,  unless  particular  inquiry  be 
made  by  the  carrier.  But  it  must  be 
fully  understood  that  money  cannot  be 
considered  as  baggage,  except  such  as 
is  bondjide  taken  for  travelling  expenses 
and  personal  use,  and  to  such  reasona- 
ble amount  only  as  a  prudent  person 
would  deem  necessary  and  proper  for 

[744] 


such  purpose.  But  money  intended  for 
trade,  or  business,  or  investment,  or  for 
transportation,  or  any .  other  purpose 
than  as  above  stated,  cannot  be  regard- 
ed as  baggage."  See  to  the  same  effect 
Weed  V.  b.  &  S.Eailroad  Co.  19  Wend. 
534 ;  Bomar  v.  Maxwell,  9  Humph. 
621  ;  Johnson  v.  Stone,  11  Humph. 
419. 

{in)  "If  one  has  books  for  his  in- 
struction or  amusement  by  the  way,  or 
carries  his  gun  or  fishing  tackle,  they 
would  undoubtedly  fall  within  the  term 
baggage,  because  they  are  usually  car- 
ried as  such."  Per  Bronson,  J.,  in 
Hawkins  i'.  Hoiiman,  6  Hill,  586.  So 
in  Brooke  v.  Pickwick,  4  Bing.  218,  and 
McGill  V.  liowand,  3  Barr,  451,  carriers 
were  held  responsible  for  ladies'  trunks 
containing  apparel  and  jewels.  So  in 
Woods  V.  Devin,  13  111.  746.  a  common- 
carrier  of  passengers  was  held  liable  for 
the  loss  of  a  pocket-pistol  and  a  pair  of 
duelling  pistols,  contained  in  a  carpet- 
bag of  a  passenger,  which  was  stolen 
out  of  the  possession  of  the  carrier. 
And  in  Jones  v.  Voorhees,  10  Ohio, 
145,  it  was  held  that  a  gold  watch  of 
the  value  of  ninety-five  dollars  was  a 
part  of  a  traveller's  baggage,  and  his 
trunk  a  proper  place  to  carry  it  in. 
But  see  Bomar  v.  Maxwell,  9  Humph. 
621,  where  the  plaintiff''s  trunk  con- 
tained "  a  silver  watch,  worth  about 
thirty-five  dollars  ;  also,  medicines, 
hand-cuffs,  locks,  &c.,  worth  about 
twenty  dollars,"  and  the  court  said :  — 
"  The  watch  alleged  to  have  been  in  the 


CH.   XII.] 


BAILMENT. 


-722 


and  illustrate  its  bearing  upon  the  case  at  bar,  as  they  see  fit, 
and  the  jury  apply  the  principle  so  stated  as  they  best  can. 
In  regard  to  the  proof  of  the  contents  of  a  passenger's  ti'unk, 
the  prevailing  American  authority  holds  that  the  liability  of 
the  carrier  for  some  amount  having  been  established  aliunde, 
the  plaintiff  is  a  competent  witness  ex  necessitate,  to  prove 
the  contents  of  his  trunk  and  their  value,  (n)  From  the 
same  necessity,  the  wife  of  the  owner  has  been  admitted 
to  prove  the  same  facts,  (o)  But  the  rule  for  the  admission 
of  such  evidence  does  not  extend  farther  than  to  the  proof  of 
such  as  being  commonly  carried  in  a  traveller's  trunk,  may 
be  expected  to  be  there,  (p)  In  Massachusetts  it  seems  to 
be  settled  that  the  common-law  rule  prevails,  and  neither 
the  owner  nor  his  wife  can  be  a  witness  in  an  action  brought 
by  the  owner,  (q) 


trunk,  clearly  does  not  fall  within  the 
meaning  of  the  term,  baggage  ;  and 
much  less  the  hand-cuffs,  locks,  &c. ; 
these  certainly  do  not  usually  constitute 
part  of  a  gentleman's  wardrobe,  nor  is 
it  perceived  how  they  are  necessary  to 
his  personal  comfort  on  a  journey  in  a 
stage  coach." 

(n)  Sucider  v.  Geiss,  1  Yeates,  34; 
Clark  V.  Spence,  10  Watts,  335;  Op- 
penheimer  v.  Edney,  9  Humph.  383 ; 
Johnson  v.  Stone,  11  Humph.  419  ; 
Whitesell  v.  Crane,  8  W.  &  S.  369  ; 
Mad  Iliver  &c.  R.  R.  Co.  v.  Fulton,  20 
Ohio,  318;  Sparr  v.  Wcllinan,  11 
Missouri,  230. 

(o)  McGill  V.  Rowand,  3  Barr,  451 ; 
Mad  River  &c.  R.  R.  Co.  v.  Fulton,  20 
Ohio,  318. 

(p)  Mad  River  &c.  R.  R.  Co.  v. 
Fulton,  20  Ohio,  318.  Therefore  it  has 
been  held  not  to  extend  to  "  medical 
books,  medicines,  surgical  instruments, 
and  chemical  apparatus."  Pudor  r.  B. 
&  M.  Railroad  Co.  2G  Maine,  458. 
And  see  Bingham  v.  Rogers,  G  W.  & 
S.  495. 

(7)  Snow  V.  Eastern  Railroad  Co.  12 
Met.  44.    In  this  case  Hubbard,  J.,  said : 

VOL.   I.  63 


— "  To  admit  the  plaintiff's  oath,  in 
cases  of  this  nature,  would  lead,  we 
think,  to  much  greater  mischiefs,  in  the 
temptation  to  frauds  and  perjuries,  than 
can  arise  from  excluding  it.  If  the 
party  about  to  travel  places  valuable 
articles  in  his  trunk,  lie  should  put  them 
under  the  special  cliargc  of  the  carrier, 
with  a  statement  of  what  tlicy  arc,  and 
of  tlieir  value,  or  provide  other  evidence, 
beforehand,  of  the  articles  taken  by  iiim. 
If  he  omits  to  do  this,  he  then  takes 
the  chance  of  loss,  as  to  the  value  of 
tlic  articles,  and  is  guilty,  in  a  degree, 
of  negligence  —  the  very  thing  with 
wliich  he  attempts  to  cliarge  the  carrier. 
Occasional  evils  only  have  occurred 
from  such  losses,  tlirough  failure  of 
proof;  the  relation  of  carriers  to  the 
party  being  sucli  that  tlie  losses  are 
usually  adjusted  by  compromise.  And 
there  is  nothing  to  lead  us  to  innovate 
on  the  existing  rules  of  evidence.  No 
new  case  is  presented  ;  no  facts  which 
have  not  repeatedly  occurred ;  no  new 
combination  of  circumstances."  —  See, 
further  on  this  (picstion,  the  editors' 
note  to  Great  Jsortlicrn  Raihvav  Co.  i'. 
Shcplicrd,  9  E.  L.  &  E.  477,  and  1 
Greenl.  Ev.  348. 

[745] 


INDEX. 


A 
ACCEPTANCE, 

of  a  bill,  presentment  for,  221. 

"when  and  how  made,  222. 

must  conform  to  the  bill,  222. 
of  offers,  403-408. 

(See  Assent.) 
of  bids  at  auction  sales,  403. 
of  a  guaranty,  37.5,  401,  500  -502. 

by  the  owners  of  goods  delivered  to  a  carrier  before  reaching  their 
destination,  674,  675. 
ACCEPTOR, 

(See  IXDORSEMEN'T,  BiLLS  AND  NoTES,  ACCEPTANCE.) 

ACCOMIMODATION  BILLS  AND  NOTES, 

rights  and  liabilities  of  parties  to,  215,  21G. 
ACCOPvD  AND  SATISFACTION, 

with  one  joint  party  a  discharge  of  the  others,  21.  27. 
ACCOUNT, 

required  of  an  agent,  76. 

of  a  partnership,  equity  governed  by  the  last  settled,  -  173. 
ACTION, 

right  of,  under  a  contract,  whether  belonging  to  principal  or  agent, 
53. 

against  principal  or  agent,  53,  54. 
against  an  agent  to  determine  the  right  of  the  principal,  67. 
right  of,  between  partners,  139. 

compromise  of,  a  valid  consideration,  363-365. 
forbearance  of,  366  -  369. 
assignment  of,  370. 
ACT  OF  GOD, 

common-carrier  excused  for  losses  occasioned  bv,  634  -  637. 
ADEQUACY, 

of  consideration,  362,  363,  414. 
ADMINISTRATORS, 

(See  Executors  and  ADMrNisTRATOiis.) 
ADmSSIONS, 

of  a  partner,  when  binding  on  the  firm,  146.  n.  (m),  152. 
of  a  party  asserting  his  freedom,  331. 


748  INDEX. 

AGENCY, 

^        in  general,  38-42. 

what  the  term  includes,  39,  n.  (c). 
fundamental  principles  of,  38,  39. 
AGENTS, 

division  of  into  general  and  particular,  39. 

authority  of  each  limited,  of  particular  agents  by  the  special  power 
given,  of  general  agents  by  the  usual  extent 
of  the  general  employment,  40,  41,  49. 
but  not  in  either  case,  by  private  instructions 
not  to  be  communicated  to  parties  dealing 
with  the  agent,  40,  n.  (d). 
must  be  strictly  pursued,  41,  n.  (/). 
limited  by  instructions  known  to  parties  dealing 
with  them,  41,  n.  (/). 
of  general  agent,   continues   till   notice  of   its  revoca- 
tion, 42. 
In  tohat  manner  authority  may  be  given  to  an  agent,  42-44. 
exjjressly,  by  parol  to  do  any  thing  not  requiring  a  sealed  instru- 
ment, 42. 

but  not  to  execute  contracts  under  seal,  42,  n.  (i). 
receipt  of  agent  is  the  receipt  of  principal,  42,  n.  (i). 
tender  to  the  agent  is  tender  to  the  principal,  42,  n.  (i). 
by  implication,  as   to  an  auctioneer,  wife,  son,  clerk,   insurance 
agent,  43,  249,  252,  287,  289,  304,  392,  393. 
to  indorse  negotiable  paper,  43,  n.  (o),  44,  n.  (q). 
to  buy  on  credit,  43,  n.  (m). 
Subsequent  confirmation,  44  -  4  7. 
expressly  and  by  implication,  44,  45,  47,  n.  (ec). 
in  cases  of  marine  insurance,  45,  n.  (tt). 
in  cases  of  notices  to  quit,  45,  n.  (tt'). 
by  neglect  to  disavow  agents'  deeds,  46. 
of  part  of  the  agency  confirms  the  whole,  46. 
once  made  cannot  be  disaffirmed,  46,  n.  (iC). 
by  principal  unknown  when  the  contract  was  made,  44,  n. 
oral,  of  a  parol  contract  sufficient,  47. 

of  a  contract  requii-ed  to  be  in  writing  by  statute,  47. 
parol,  of  a  deed  not  sufficient,  47. 

unless  the  seal  was  unnecessary  to  its  validity,  47. 
when  the  principal  may  ratify  an  unauthorized  act,  45,  n.  {tt). 
of  a  trespass,  45,  n.  (tt),  46,  n.  (tt),  47,  n.  (wy). 
to  bind   the  principal,   must    be  with  a  full  knowledge   of  the 

facts,  46,  n.  (u). 
by  a  state,  46,  n.  (u).  47,  n.  (wy). 
Signature  by  an  agent,  47-49. 

what  is  sufficient  to  make  the  principal  a  party,  47,  48. 
whether  signature  of  agent  or  principal,  to  be  determined  by  the 
intention,  *48. 


INDEX.  T49 

AGENTS,  continued. 

■whether  principal  can  sue  or  be  sued  on  a  written  parol  contract 

in  -which  his  name  does  not  appear,  48,  n.  (a),  49  n.  (&). 
Duration  and  extent  of  autJiority,  49  -  52. 
how  limited,  49,  50. 
restricted  to  acts  necessary  and  usuallj'  incident  to  the  authorized 

act,  49,  50,  51. 
to  sell  carries  with  it  no  power  to  sell  on  credit,  50. 

to  barter  or  pledge,  51,  n.  (r/). 
except  under  statute,  51,  n.  ((7). 
to  transfer  negotiable  paper  intrusted  to  them,  212. 
when  derived   from  written  Instruments  must  be  strictly   pur- 
sued, 51,  52,  96. 
to  warrant,  when  it  is  given,  *52. 
effect  of  unauthorized  exercise  of,  to  warrant,  52. 
to  borrow  money,  41,  n.  (/). 
measured  by  usage  when  it  is  oral,  but  not  when  It  is  xcritten, 

*52,-52. 
effect  of  the  agent's  concealments  and  misrepresentations  in  avoid- 
ing a  contract,  52,  n.  (?•). 
The  right  of  action  under  a  contract,  53,  418. 
when  an  undisclosed  principal  may  sue  and  be  sued,  53,  54. 
when  the  agent  of  an  undisclosed  principal  may  sue  or  be  sued 

55,  n.  ((Z),  418. 
Liability  of  an  agent,  54  -58. 
in  what  cases  liable,  51,  54. 
when  he  himself  is  the  real  principal,  55. 
when  he  transcends  his  authority,  51,  55. 

notwithstanding  subsequent  confirmation  by  principal,  55  n.  (J), 
liable  for  the  entire  contract,  when  he  exceeds  his  authority  in 

part,  *  58,  -  58. 
whether  liable  when  acting  loml  fide  without  authority,  00,  5C. 
in  what  form  of  action  liable,  57,  58. 
Revocation  of  authority,  58-62. 
his  authority  revocable  by  principal,  58. 

unless  coupled  with  an  interest,  or  given  for  valuable  consider- 
ation, 58,  n.  Qi),  62,  85. 
when  authority  Is  coupled  with  an  Interest,  62. 
whether  that   of  factor  to  sell   Is  revocable   after  advances  by 

him,  58,  n.  {h). 
continues  as  regards   third   persons  until   notice    of  Its  revoca- 
tion, 42,  59,-60. 
method  In  which  notice  of,  should  be  given,  59. 
revocable  by  death  unless  coupled  with  an  interest,  61,  and  n.  (/«). 
by  lunacy,  61,  n.  (/). 
by  bankruptcy,  61,  n.  (Z). 
by  marriage  oi  feme  sole,  61,  n.  (l). 
63* 


750  INDEX. 

AGENTS,  continued. 

IToiv  the  principal  is  affected  ly  the  misconduct  of  his  agent,  62,  63. 

principal  liable  for  fraud  and  false  representations  of  his  agent,  63. 

althougli  no  actual  fraud  is  proved,  63. 

of  notice  to  an  agent,  64  -  66. 

when  equivalent  to  notice  to  the  principal,  64. 

■when  notice  to  an  attorney  is  notice  to  his  client,  64. 

when  notice  to  the  principal  is  notice  to  his  agents,  65,  66. 

what  notice  affects  a  corporation,  66. 

Of  shipmasters,  66,  67. 

their  extraordinary  powers  under  peculiar  exigencies,  66,  67, 

Of  an  action  against  an  agent  to  determine  the  right  of  a  princi- 
pal, 67,  68. 

agent,  not  liable  to  suit  for  money  paid  to  him  to  which  principal 
has  color  of  right,  67. 

unless  notice  not  to  pay  over  has  been  given,  or  the  payment  is 
void  ab  initio,  67,  n.  (t). 

The  rights  and  obligations  of  p)rincipal  and  agent  as  to  each 
other,  69  -  77. 

agent  bound  to  follow  the  instructions  of  principal,  69. 

if  he  has  none,  is  bound  to  follow  custom  and  usage,  69,  73. 

what  is  such  usage,  73. 

and  usage  will  not  justify  a  disregard  of  instructions,  69. 

how  each  is  affected  by  the  principal's  ratification  of  the  agent's 
contract  and  torts,  69,  70. 

principal  must  reject  agent's  unauthorized  act  at  once  or  he  rati- 
fies it,  71. 

when  agent's  act  may  be  partly  void,  70,  n.  (?(). 

when  the  agent  can  delegate  his  authority,  71,  72. 

whose  agent  the  substitute  is,  73,  76. 

agent  bound  to  use  proper  care,  diligence,  and  skill,  73. 

to  what  extent  liable  when  acting  gratuitously,  73,  n.  (?«),  74,  n.  (z). 
or  in  a  professional  capacity,  73,  n. 
(lo),  74,  n.  (~). 

responsible  for  misconduct  and  deviation  from  instructions,  74. 

must  not  hold  a  position  adverse  to  that  of  principal,  74. 

when  employed  to  buy  or  sell,  cannot  buy  of  or  sell  to  him- 
self, 74,  «75,  75. 

and  need  not  be  proved  to  have  taken  undue  advantage  of  his 
position,  75. 

bound  to  account  with  proper  frequency,  76. 

when  chargeable  with  interest  on  balance  in  his  hands,  77. 

to  whom  mixed  property  of  principal  and  agent  belongs,  77. 

when  liable  as  partners,  134-137. 

whether  appointment  by  an  infant  is  void,  243. 

when  the  wife  is  agent  of  the  husband,  255,  286  -  306. 

who  are,  of  a  common-carrier,  651,  655  -  657,  685,  699. 

a  slave  may  be  an  agent,  333. 


^  INDEX.  751 

AGREEMENT, 

use  of  the  term,  6. 

(See  Assent,  Contracts,  &c.) 
ALIENS, 

definition  of,  by  the  common  law,  323. 

■what  persons,  born  abroad,  are  citizens  by  statute,  323. 

rights  of,  as  to  real  property,  324. 

as  to  personal  property,  324. 
suits  by  and  against,  324. 
general  rights  and  duties  of,  324,  325. 
APPRENTICES, 

law  governing  the  relation  of,  how  it  arose',  532. 
liability  of,  262,  276,  277,  533. 
duty  of  master  towards,  533,  534. 

liability  of  parties  covenanting  for  good  behavior  of,  534. 
rights  of  master  against  persons  seducing  or  harboring,  535. 
ARBITRATION, 

firm  not  bound  by  a  partner's  submission  to,  without  special  au- 
thority, 168. 
submission  to,  a  valid  consideration,  364  -  376. 
ARBITRATOR, 

compensation  of,  538. 
ASSENT,  of  the  parties,  399-408. 

What  the  assent  must  be,  399-403. 
must  be  mutually  obligatory,  373-  376,  399. 
the  acceptance  must  not  vary  from  the  proposition,  400,  401. 
acceptance  of  an  ofier  of  guaranty,  375,  401,  402,  500-503. 
of  bids  at  sales  by  auction,  403,  418. 
of  an  offer  of  marriage,  544,  545,  546. 
Contracts  on  time,  403,  408. 

acceptance  of  offers,  when  no  time  for  acceptance  is  express- 
/  ed,  404,  406. 

when  time    for    acceptance    is    expressly 

fixed,  404,  405. 
when  both  the  offer  and  acceptance  arc 
made  by  letter,  406  -  408. 
ASSIGNMENT, 

of  all  the  partnership  property  by  a  partner,  154-  156. 
of  a  partner's  interest  in  the  firm,  effect  of,  131,  171. 
of  the  shares  of  a  joint-stock  company,  121. 
Of  assignment  of  chases  in  action,  192-197. 
clioses  in  action,  what  are,  192. 

when  they  may  be  enforced  in  equity  by  the  as- 
signee, 193. 
what  are  and  what  are  not  assignable,  194-197. 
how  protected  at  law,  195. 
when  a  consideration,  370. 


752  INDEX.  _^ 

• 

ASSIGNMENT,  continued. 

(See  Novation.) 

Of  the  mmmer  of  assignment,  197,  198. 

■whether  it  must  be  in  writing,  197,  n.  (e). 
Of  the  equitable  defences,  198,  199. 

respective  i-ights  of  the  assignee  and  debtor,  198,  199. 

Covenants  annexed  to  land,  199  -  201. 

right  to  sue  on,  possessed  by  an  assignee  having  the  same  estate  as 
the  covenantee,  199. 

"what  covenants  run  with  the  land,  199-  201. 
ATTAINDER, 

consequences  of,  348. 
ATTAINTED  PERSONS,  348. 
ATTORNEYS, 

classes  of,  94. 

how  the  authority  to  make  a  contract  or  deed  must  be  given,  94. 

how  it  must  be  executed,  95,  96. 

attorney  at  law,  how  his  authority  must  appear,  97. 

when  personally  liable  for  his  client's  money,  97. 

duties  to  clients,  97,  98,  588,  n.  (r). 

when  personally  liable  on  agreements  in  his  own  name  for  his  cli- 
ent's benefit,  99. 

compensation  for  sei-vices  of,  98,  538,  539. 

cannot  recover  compensation  if  services  are  worthless,  98,  99. 

lien  of,  539,  n.  (;:). 
ATTORNEY, 

notice  to,  when  notice  to  the  client,  64. 

may  not  take  a  gift  from  a  client,  *  75. 
AUCTION, 

an  agent  authorized  to  sell  at,  cannot  sell  at  private  sale,  51,  n.  (g). 

how  the  purchaser  at,  is  bound  by  memorandum  of  auctioneer,  96, 
^l,n.{gg). 

bids  at,  403,  418. 

sales  at,  effect  of  misdescription,  415-417,  451. 
in  separate  lots,  417. 
when  avoided  by  by-bidding,  417. 

powers  and  liabilities  of  auctioneer,  418-420. 

conditions  of  sale  at,  450,  451. 
AUCTIONEER, 

implied  authority  of,  43. 

cannot  sell  at  private  sale,  51,  n.  {g). 

liability  of  when  selling  in  his  own  name,  54,  n.  (5). 

powers  and  liabilities  of,  418  -  420. 

(See  Auction.) 
AUTHORITY, 

of  an  agent,  how  measured,  38  -  42. 

how  conferred,  42  -  44. 


INDEX.  753 

AUTHORITY,  continued. 

how  ratified,  44-47. 

how  executed  in  signing  a  written  instrument,  47-49. 

duration  and  extent  of,  49  -  52. 

to  sue,  53. 

how  terminated,  58  -C2,  85. 

to  render  the  principal  liable  for  his  misconduct,  62. 

for  notice  received,  64  -  66. 
to  delegate  his  authority,  71. 
to  sell  his  principal's  property  to  himself,  75. 
to  transfer  negotiable  paper  intrusted  to  him,  212. 
to  bind  a  corporation,  how  conferred,  117,  118. 
how  executed,  118  -  120. 
of  shijmiasters,  66,  67. 
oi  a  partner,  151-168. 

to  sue  on  paper  of  the  firm  after  decease  of  copartner,  21  n.  (c.) 
to  indorse   the   paper  of  the  firm  in  its  name  after  dissolution, 

44,  n.  (7). 
to  sign  the  firm's  name  to  a  note  without  more,  97,  n.  {gg). 
to  bind  the  firm  by  his  admissions,  146,  n.  (?«),  152. 
by  his  contracts,  151  -  168. 
by  his  torts,  160,  161,  n.  (n). 
by  a  submission  to  arbitration,  168. 
how  terminated,  170  -  173. 
of  a  majority  of  partners,  156,  168,  169. 

of  a  child  to  render  the  parent  liable  for  necessaries  furnished  to 
him,  247-257. 

(See  Infants.) 
of  a  married  icoman,  to  render  her  husband  liable  for  her  contracts 
and  necessaries  furnished  to  her,  286  -  306. 
{See  Mauried  Women.) 
AWAY-GOING  CROPS, 

rights  of  landlord  and  tenant  to,  430. 

B. 

BAGGAGE, 

liability  of  passenger  carriers  for,  673. 
what  constitutes,  720,  721,  722. 

testimony  of  owner,  admissible  to  prove  amount  of,  -  722. 
BAILMENT, 

history  of  the  law  of,  569. 

degrees  of  bailee's  responsibility,  570. 

kinds  of,  571,  572. 

Depositum,  572  -  580. 

depositary's  liability,  measure  of,  572-577. 

delivery  by  depositary,  577,  578. 


754  INDEX. 

BAILMENT,  continued. 

property  of  depositary,  nature  of,  578. 

■when  persons  are  chargeable  as  depositaries,  579. 

Mandatum,  580-589. 

consideration  of,  372,  373,  581. 

mandatary's  liability,  ground  of,  372,  373,  580  -  585. 

measure  of,  586  -  589. 
distinction  between  liability  ex  contractu  and  ex  delicto.,  585,  58G. 
Commodatum,  590. 
liability  of  borrower,  590. 
Pignus,  591  -  602. 

pledgee's  liability,  measure  of,  591,  592. 
property  in  the  pledge,  592. 
use  of,  593. 

liability  to  account  for  the  profits  of,  593. 
liability  for  the  theft  of,  594. 
difference  between  a  pledge  and  a  mortgage,  452,  n.  {xx),  594  -  599. 
pledge  of  stocks,  594  -599. 
rights  of  pledgee,  592,  593,  600,  601,  602. 
sale  of  pledge,  602. 

■whether  an  implied  warranty  in  a  sale  of,  457,  n.  (/). 
termination  of,  601,  602. 
of  a  bill  of  lading,  effect  of  on  the  consignor's  right  of  stoppage  in 

transitu,  489. 
Locatio,  e02- 722. 
Locatio  rei,  602-610. 
bailee  in,  measure  of  his  liability,  602,  603. 

bailee  in,  his  liability  for  injuries  to  the  thing  bailed,  by  the  negli- 
gence of  his  servants,  604,  605. 
by  theft  or  robbery,  605,  606. 
duty  of,  as  to  the  manner  of  using  the  thing  hired,  608. 
as  to  the  time  of  surrendering  the  thing  hired,  608. 
as  to  accounting  for  Injury  to  the  thing  bailed,  606. 
property  of,  in  the  thing  bailed,  609. 
bailor  in,  bound  not  to  interfere  with  the  hirer's  use  of  the  thing,  607. 
when  bound  to  repair,  607. 
compensation  of,  609. 
contract  of  hire,  how  terminated,  609. 

hirer  of  slaves,  responsibility  of,  603-605,  n.  (r),  60S,  n.  (b). 
Locatio  operis  faciendi,  610  -632. 
mechanic  employed   in  the  manufacture  and  repair  of  an  article 

hailed,  610-617. 
liability  of, how  measured,  610,  611. 
property  of,  in  the  article  bailed,  Cll. 
right  of,  to  compensation  for  labor,  when  the  article  perishes  during 

the  bailment,  611. 
when  liable  as  bailee,  or  absolutely  as  debtor,  611  -613. 


INDEX.  755 

BAILMENT,  continued. 

rights  and  liability  of,  in  case  of  a  deviation  from  the  contract, 

614-617. 
lien  of,  617, 

Warehouse- men,  618  -  622. 
liability  of,  how  measured,  618. 

■when  extended  to  that  of  a  common-carrier,  G18  -  620, 
652-654. 
delivery  by,  when  the  title  is  in  dispute,  621,  677,  678. 
Wharfingers,  liability  of,  622. 
Postmasters,  liability  of,  622. 
Innkeepers,  623-632. 
persons  liable  as- such,  623. 
infants  not  liable  as  such,  263. 
liability  of,  how  measured,  623-625. 

when  discharged  by  the  negligence  of  the  guest,  625- 

627. 
when  incurred  by  delivery  to,  627,  628. 
duty  of,  to  receive  guests,  -  627. 

to  admit  drivers  of  coaches,  -  627. 
separate  compensation  for  keeping  the  guest's  goods  not  necessary 

to  render  the  innkeeper  liable,  -  627. 
persons  entitled  to  the  legal  rights  of  guests,  628-630. 
•when  goods  of  the  guest  are  within  the  custody  of  the  innkeeper, 

so  as  to  charge  him,  626,  631. 
lien  of,  632. 

Locatio  operis  mercium  vehendarum,  633-  722. 
private  carriers,  persons  liable  as  such,  633,  634. 
not  bound  to  receive  goods,  648. 
special  property  of,  in  the  chattel,  633. 
liability  of,  how  measured,  633. 

extended  and  limited  by  special  con- 
tract, 634, 
Common- Carriers.     (^See  Carriers,  common.) 
BANK  BILLS, 

notes  payable  in,  not  negotiable,  209.  , 

payment  in  forged,  or  those  of  an  insolvent  bank,  218,  220. 
BANK  CHECKS. 

when  to  be  presented,  217,  218. 

when  forged  and  paid  by  the  bank,  the  loss  falls  on  the  bank,  220. 
effect  of  usage  on  acceptance  of,  229. 
not  entitled  to  days  of  grace,  230. 
BANKS, 

checks  of,  217,  218,  220,  229. 
■    collection  of  negotiable  paper  by,  586,  n.  (n). 
liability  of,  for  special  deposits,  573,  n.  (s). 


756  INDEX. 

BANKRUPTCY, 

of  a  principal  revokes  the  agent's  authority,  61,  n.  (I). 

of  a  partner  dissolves  the  partnership,  *  173  -  173. 

infant  cannot  subject  himself  to,  261. 

contract  barred  by,  revived  by  new  promise,  308,  309,  360. 
BANKRUPTS  AND  INSOLVENTS, 

distinction  between  a  bankrupt  and  an  insolvent  law,  307. 

effect  of  a  promise  to  pay  a  debt  discharged  by,  308,  309,  360. 

what  constitutes  such  promise,  308. 

form  of  action  upon  such  promise,  308,  309. 
BAR, 

when   created  to   an  action  against  one  debtor  by  a  judgment 
against  his  co-debtor,  12,  n.  (/). 
BARTER, 

agent  to  sell  cannot,  without  special  authority,  51,  n.  (g). 
BEARER, 

note  or  bill  payable  to,  how  transferred,  205. 
BIDS, 

{See  Auction.) 
BILLS  OF  LADING, 

negotiability  of,  239. 

stoppage  in  transitu  defeated  by  indorsement  of,  487  -489. 

pledge  of,  600,  601. 

liability  of  carrier,  how  affected  by  exceptions  in,  647,  648. 
BILLS  OF  EXCHANGE, 

(See  Bills  and  Notes.     Indoesemext.) 
BILLS  AND  NOTES, 

liability  of  agent  intrusted  with,  73,  n.  (?/). 

power  of  agent  intrusted  with,  to  pledge,  80. 

liability  of  partnership  on, when  drawn  without  authority,  161, n.  (n). 
of  executor  on,  108. 

negotiable  bills  and  notes,  202  -  206. 

exceptions  to  rule  j)rohibiting  assignments  of  choses  in  ac- 
tion, 202. 

essentials  of,  206-210. 

indorsement  of,  211  -216. 

apportionment  of,  when  the  consideration  is  divisible,  388,  n.  (m). 

payable  on  demand,  217-  221. 

presentment  of,  for  acceptance,  221,  222. 
for  payment,  223  -  238. 

of  whom,  when,  and  where  the  demand  of  should  be  made,  228  -  230. 

notice  of  non-payment  of,  231. 

excuses  for  neglect  of,  232. 

when,  where,  and  how  to  be  given,  233-  235. 

how  the  Indorser  may  be  discharged,  235,  236,  237. 

protest  of  bills,  237,  238. 


INDEX.  757 

BILLS  AND  NOTES,  continued. 

damages  for  non-payment  of  bills,  239. 
{See  Indorsement.) 

liability  of  holder  of,  as  collateral  security,  592,  n.  (w). 

liability  of  banks  for  collection  of,  ivhcn  intrusted  to  them,  586 ,  n.  («). 

pledgee  of,  his  rights,  600,  601. 
BLANK, 

indorsements  in,  205. 
BOATMEN, 

when  liable  as  common-carriers,  644,  645. 
BOND, 

assignment  of,  196,  197,  198. 

of  railroad,  negotiability  of,  240, 

of  an  infant,  243,  260. 
BORROWER, 

rights  of,  590. 
BROKER, 

power  to  resell  and  charge  with  the  loss  the  purchaser  who  fails  to 
pay,  50,  n.  (e). 

cannot  delegate  his  authority,  72,  n.  {q),  84. 

distinction  between,  and  a  factor,  78,  84. 

when  a  partner,  125,  n.  (c). 

power  of,  when  the  pledgee  of  stock,  599. 

(&e  Factors  and  Brokers.) 
BROTHEL, 

proximity  of,  whether  it  avoids  a  contract  for  the  hire  of  a  house, 
when  not  disclosed  by  the  agent  at  the  time  it  was  made,  52,  n.  (r). 
BY-BIDDING, 

when  sales  at  auction  are  avoided  by,  417. 


C. 
CARRIERS,  COMMON, 

liability  of,  how  measured,  634,  635. 

excused  for  losses  occasioned  by  the  "  act  of  God,"  634  -  637. 

by  the  natural  decay  of  goods,  638, 

676,  677. 
by  public  enemies,  638,  639. 
Who  is  a  Common- Carrier,  639-648. 
wagoners  and  mai'ket  men,  639  -  642. 
truckmen,  cartmen,  and  porters,  641,  642. 
proprietors  and  drivers  of  stage  coaches,  643. 
carriers  by  water,  644-647. 
boatmen  and  ferrymen,  645. 
proprietors  of  steamboats,  645. 
owners  of  general  ships,  646,  647. 
railroad  companies,  648. 
VOL.  I.  64 


758  INDEX. 

CARRIERS,  COMMON,  continued. 

Obligations  of  a  Common- Carrier^  648. 

to  receive  goods,  648. 

excuses  for  refusal  to  receive,  649,  650. 

compensation  of,  649,  650,  680,  697. 

discrimination  between  persons,  how  limited,  650. 

When  the  responsibility  begins,  650-652. 

with  delivery  to,  650  -  652. 

determined  by  the  character  in  which  the  earner  receives  goods, 

652-654. 
notice  of  the  delivery,  654,  669. 
delivery   to  what   persons   renders   the   carrier   liable,    650,  651, 

655-657. 
liability  of  the  owner  of  a  ship  carrying  goods  when  chartered  to 

another,  657. 
When  the  responsibility  ends,  658  -  67  7. 
delay  in  delivery,  when  excused,  659  -660. 
duty  of,  when  delivery  to  the  consignee  cannot  properly  be  made, 

660,  683. 

what  constitutes  delivery  by,  658,  661,  662. 

how  afiected  by  usage,  661,  670,  671. 

when  notice  to  the  consignee  of  the  arrival  of  goods  is  necessary, 

661,  662,  669. 

railroad  carriers,  delivery  by,  662  -664. 

carriers  by  water,  delivery  by,  665  -  670. 

when   common-carriers  become  liable  only  as  warehouse-men  or 

depositaries,  671,  674,  680,  681. 
not  liable  for  goods  in  the  personal  custody  of  the  owner,  650,  672, 

674. 
acceptance  of  the  goods  by  the  consignee  before  reaching  their 

destination,.eifect  of,  674. 
failufe  to  deliver,  when  excused,  635-639,  675-677. 
Where  a  third  party  claims  the  goods,  677-  680. 
dehvery  to  the  true  owner  a  good  defence  to  an  action  brought  by 

the  consignor  having  no  right,  678. 
remedy  in  equity,  578,  621,  679. 
Compensation,  648,  649,  680. 
Lien,  681,  682. 
right  of,  681. 

abandonment  of,  681,  n.  (a). 

liability  of,  while  holding  goods  on  the  ground  of,  681. 
when  he  receives  the  goods  from  one  not  the  owner  or  his  agent, 

682-684. 
when  the  carrier  is  liable  only  as  factor,  684,  685. 
liable  for  the  acts  of  agents,  685,  686,  699. 
of  partners,  699,  700. 
when  liable  for  the  safe  transportation  of  goods  beyond  the  terminus 


INDEX.  759 

CARRIERS,  COMMON,  continued. 
of  his  route,  G86  -  690. 
Common-Carriers  of  Passengers,,  690-  702. 
liability  of,  how  measured,  690-  695. 

for  gratuitous  passengers,  691  -  695. 
for  the  carriage  of  slave?,  691  -692,  n.  (m). 
duty  of,  to  notify  passengers  of  peculiar  dangers,  692,  n.  (??i). 
burden  of  proof  on,  to  disprove  negligence  in  case  of  loss,  695. 
duty  of,  to  receive  passengers,  696. 
excuses  of,  for  not  receiving,  696,  n.  (o). 
duty  of,  as  to  speed,  treatment  of  passengers,  providing  suitable 

means  of  transport,  and  proper  servants,  697  -  700. 
liability  of,  for  injuries  to  strangers,  700. 
in  cases  of  collision,  701  -  702. 

■when  the  negligence  of  the  injured  party  is  a  good 
defence,  700  -  702. 
liability  by  express  contract,  703  -  707. 
Of  Special  Agreements  and  Notices,  689,  703  -  718. 
■whether  they  may  qualify  their  common-law  liability,  703. 

by  express  contract,  703-  707. 
by  notice,  707-  712. 
how  far  they  may  limit  their  liability  by  notice,  709-  717. 
liability  of,  in  case  of  negligence  notwithstanding  notice,  713  -  718, 

■whether  the  notice  dispenses  with  a  special  inquiry,  717  -  718. 

what  is  sufficient  notice,  719,  n.  (;'). 

Of  Fraud,  719-722. 

liability  of,  how  affected  by  the  fraud  of  the  owner,  719. 

for  baggage  of  passengers,  to  what  articles  it  extends, 
673,  720,^721,  722. 
testimony  of  the  passenger,  admissible  to  prove  the  contents  of  his 
trunk,  to  what  extent,  721-722. 
CARRIERS,  PRIVATE, 

persons  liable  as  such,  633,  639,  n.  (r.) 
special  property  of,  in  the  chattel,  633. 
liability  of,  how  measured,  633. 
how  affected  by  special  contract,  634. 
not  bound  to  receive  goods,  648. 
CAVEAT  EMPTOR, 

rule  of,  ■when  applied,  460. 

exceptions  to, 461,  463-470. 
CHECKS  OF  A  BANK, 

(See  Bank  Checks.) 
CHILD, 

(See  Infants.) 
CHOSES  IN  ACTION, 

assignments  of,  192,  202. 


760  INDEX. 

CHOSES  IN  ACTION,  continued. 

rights  of  the  assignee  of,  192,  193. 

what  may  be  assigned,  194,  196. 

manner  of  assignment  of,  197. 

equitable  defences  to,  197. 

of  a  married  woman,  how  reduced  into  possession  by  her  husband, 
284-286. 

(See  Assignment  and  Novation.) 
CO-CONTRACTORS, 

contribution  between,  32,  33. 
COHABITATION, 

how  it  afFects  the  husband's  liabilities  for  contracts  of  his  wife,  and 
necessaries  furnished  to  her,  286  -  306. 
COLLATERAL  SECURITY, 

bills  and  notes  when  negotiated  as  such,  whether  open  to  equitable 
defences,  216. 

liability  of  the  holder  of  bond  and  notes,  as  such,  592,  n.  (u.) 
COAtMISSIONS, 

factor's  right  to,  when  complete,  84. 
his  lien  for,  84. 

may  pledge  to  the  amount  of  his  lien  for,  80. 
COMMODATUM, 

liability  of  borrower,  590. 
COMPANIES, 

(See  Joint-Stock  Companies.) 
COMPOUND  INTEREST, 

(See  Interest.) 
COMPROMISE, 

of  suits  or  claims,  a  valid  consideration,  363,  364. 
CONCEALMENTS, 

of  agent,  how  they  affect  the  principal,  52. 

of  partner,  how  they  affect  the  firm,  160,  n.  (t). 

by  the  owner  of  goods,  how  it  affects  the  liability  of  a  common- 
carrier,  719. 
CONDITIONAL  SALES,  449-451. 
CONSIDERATION, 

necessity  for,  353. 

in  the  civil  law,  353,  355. 

in  the  continental  law,  354,  355. 

in  the  common  law,  354,  355. 

of  contracts  under  seal  or  specialties,  354,  355. 

of  written  contracts,  355,  356. 

when  expressed,  no  other  can  be  proved,  355,  356. 

not  included  in  the  definition  of  a  contract,  5,  6,  7. 

Kinds  of,  356-361. 

good,  357. 

valuable,  357. 


INDEX.  761 

CONSIDERATION,  continued. 
equitable,  357. 
moral,  358-361. 
Adequacy  of,  361  -  363,  414. 
valid  considerations  classified,  363-379. 
Prevention  of  Litigation,  363-365. 
submissions  to  arbitration,  363,  376. 
compromise  of  a  right  of  action,  364-365. 
Forbearance  of  a  suit  at  Imo  or  in  equity,  366  -  369. 
must  not  be  of  a  wholly  unfounded  claim,  366. 
tlm^of,  367. 

not  a  consideration  unless  there  is  a  party  liable  to  suit,  368. 
waiver  of  a  right  of  action,  369. 
incurring  liability  to,  369. 
assignment  of,  370. 
Work  and  service,  370,  371,  372. 
when  gratuitous,  not  a  consideration,  371,  580,  n.  (J). 
Trust  and  confidence,  372. 
liability  of  a  gratuitous  bailee,  372,  n.  (d). 
Promise  for  a  Promise,  373-376. 
not  a  consideration,  without  mutuality,  374,  375,  376. 
except  between  infants  and  persons  of  full  age,  276,  277,  376. 
Subscription  and  contribution,  377-379. 
to  the  stock  of  incorporated  companies,  377. 
for  charitable  purposes,  378,  379. 
Of  Consideration  void  in  part,  379. 
Illegality  of  Consideration,  365,  380  -  382. 
distinction  between  partial  illegality  of  consideration  and  partial 

illegality  of  promise,  380. 
distinction  between  illegality  by  statute  and  illegality  by  common 

law,  381. 
what  constitutes  illegality  by  statute,  382. 
Impossible  considerations,  382-386. 
the  impossibility  must  be  natural,  not  merely  personal  to  the  pro- 

missor,  383  -  385. 
Failure  of  Consideration,  386  -  388. 
total  failure,  386. 
partial,  386-388. 
when  divisible,  386,  387. 

Rights  of  a  Stranger  to  the  Consideration,  389-391. 
by  the  ancient  rule  of  the  common  law,  when  secured,  888,  389. 
by  the  prevailing  rule  in  this  country,  390. 
in  contracts  under  seal,  the  action  must  be  brought  in  the  name  of 

the  party  to,  391. 
The  time  of  the  Consideration,  391  -  398. 
concurrent,  391. 
executory,  391. 

64* 


762  INDEX. 

CONSIDERATION,  continued. 

executed — founded  on  previous request,expressorimplied,391, 392. 
previous  request,  when  Implied,  392-396. 
when  required  to  be  stated  In  declaration,  396,  n.  (z) 
liability  of  promissor  not  extended  by  express  promise,  when  his 
previous  request  and  subsequent  promise  are  both  Implied  by 
law,  395,  396. 
consideration  of  a  guaranty,  366,  n.  (b),  375,  496. 
of  contracts  of  novation,  189-190. 
of  negotiable  paper  presumed,  206,  211. 
when  Inqulrable  into,  215.  " 

entireness  of  the  consideration,  how  It  affects  the  joinder  or  sever- 
ance  of  parties,  15-20. 
CONSTRUCTION, 

of  warranties,  459. 
of  guaranties,  495. 
CONTINGENCY, 

how  it  affects  contracts  otherwise  within  the  Statute  of  Frauds,  529. 
CONTRACTS, 

Extent  and  Scope  of,  3,  4. 

how  expressed  and  enforced,  4,  5. 

Dejinilion  of.,  5. 

consideration  not  Involved  in,  6. 

by  what  terms  described,  6,  7. 

when  complete,  399,  408. 

Division  of,  7. 

into  contracts  by  specialty,  7. 
and  simple  contracts,  7. 
distinction  between  verbal  and  ■written,  between  written  and  parol, 

not  sound,  7. 
Essentials  of  8. 
parties  to,  9,-349. 
joint  parties,  11-37. 
agents,  38-77. 
factors  and  brokers,  78  -  85. 
servants,  86-93. 
attorneys,  94  -  99. 
trustees,  100-106. 

executors  and  administrators,  107-  112. 
guardians,  113-116. 
corporations,  11 7  -  120. 
joint-stock  companies,  121  -  123. 
partners  or  partnership,  124-186. 
neio parties  by  novation,  187-191. 

assignment,  \^2-2Ql. 
indorsement,  202-241. 
infants,  242  -  282. 


INDEX.  763 

CONTRACTS,  continued. 

married  women,  283  -  306. 
bankrupts  and  insolvents,  307-309. 
non  compotes  mentis,  310-314. 

spendthrifts,  314,  315. 

seamen,  316-318. 

persons  under  duress,  319-322. 

aliens,  323-325. 

slaves,  326-347. 

outlaws,  348,  349. 

attainted,  348,  349. 

excommunicated,  348,  349. 

consideration  of,  353-  398. 

assent  of  the  parties  /o,  399  -  408. 

subject-matter  of  contracts,  409-  722. 

real  property ,  purchase  and  sale  of,  414-420. 
hiring  of,  421-434. 

personal  property,  sale  of,  435  -  455. 

warranty,  456-475. 

stoppage  in  transitu,  476-490. 

hiring  of  chattels,  491,  492. 

guaranty  or  suretyship,  493-517. 

Iiiring  of  persons,  518-536. 

contracts  for  service  generally,  537  -  542. 

marriage,  543  -568. 

bailment,  569-  722. 

made  under  duress,  void,  319. 
CONTRIBUTION, 

when  and  on  what  principle  enforced,  32  -  34. 

by  a  surety  against  the  representatives  of  a  deceased  co-surety, 
33,  n.  (e). 

by  surety  against  a  co-surety  for  costs  of  defending  suit,  33,  n.  (f). 

fixed  and  positive  obligation  to  pay,  necessary  to,  33. 

how  the  claim  for,  is  presented  and  adjusted,  34,  35. 

contract  of,  is  a  several  contract,  35. 

dates  from  the  time  when  the  relation  was  entered  into,  35. 

when  the  right  to,  begins,  36. 

none  between  wrong  doers,  37. 

except  where  the  act  is  of  a  doubtful 
character  and  done  honafde,  37. 

controlled  by  circumstances,  showing  a  diflerent  understanding,  37. 

indorsers  of  accommodation  paper  not  entitled  to,  216. 
CORPORATIONS, 

in  law,  persons,  117. 

how  authority  to  act  for  them  may  be  given,  117. 

how  it  must  be  executed,  118,  119. 

seal  of  the  agent  of,  not  the  seal  of,  94,  n.  (/). 


764  INDEX. 

CORPORATIONS,  continued. 

may  employ  their  members  as  agents,  120. 

may  be  liable   on  contracts  entered  into  in  a  manner  not  pre- 
scribed in  the  charter,  120. 

but  not  when  the  contracts  themselves  exceed  their  powers,  120. 

what  constitutes  a  corporate  act,  120. 

when  affected  with  notice,  66. 
CO-SURETIES, 

contribution  between,  32. 

representatives  of  deceased,  liable  for,  33,  n.  (e). 
COUPONS, 

attached  to  railroad  bonds,  negotiable,  240. 
COVENANT, 

use  of  the  term,  6 . 

action  on,  whether  joint  or  several. 

(See  Joint  Parties.) 

not  to  sue,  24,  514. 

annexed  to  land,  109,  199  -  201. 

infant  not  liable  on,  by  common  law,  262. 
CREDIT, 

agent  to  sell,  cannot  give,  without  special  authority,  50. 
CROPS, 

(See  Away-going  Crops.) 


D. 

DA]VIAGES, 

in  an  action  by  principal  against  agent,  74. 
for  non-payment  of  bills  of  exchange,  239. 
in  an  action  for  freedom,  332. 
common-law  remedy  by  means  of  giving,  412. 
for  breach  of  contract  to  marry,  551  -  553. 
in  an  action  on  the  warranty  of  chattels,  474,  n.  (d). 
release  of,  26. 
DEATH, 

of  co-surety,  whether  it  relieves  his  estate  from  liability  for  contri- 
bution, 33,  n.  (e). 
of  principal  revokes  agent's  authority,  61. 
contract,  when  determined  by,  110,  111. 
of  partner  dissolves  the  partnership,  172  -  173. 
of  assignor  of  a  chose  in  action  does  not  defeat  the  assignment,  196. 
of  party  bound  to  give  notice  of  non-payment  of  bill  or  note,  ex- 
cuses want  of  notice,  232. 


DEED, 


of  agents  to  bind  the  principal  must  be  authorized  by  an  instru- 
ment under  seal,  47,  94. 


INDEX.  .     765 

DEED,  continued. 

execution  of,  by  agent  or  attorney,  48,  95,  96. 

of  the  agent  of  a  corporation, -when  binding  on,  94,  n.  (/),  118,119. 

of  partner,  when  binding  on  the  firm,  94,  n.  (/). 

of  real  estate  to  partners,  12G,  127. 

power  of  infant  to  maice  or  ratify,  243,  269,  n.  (?/),  271. 

consideration  of,  implied  by  the  seal,  354. 

proved  and  varied  by  parol  evidence,  355,  356. 
conveyances  of  real  estate  made  by,  414. 
contracts  by,  to  marry,  544. 
DEL  CREDERE  COMMISSION, 

liability  of  factor  under,  78,  81. 
whether  the  guaranty  must  be  in  writing,  78,  500. 
DELECTUS  PERSONARUM,  131. 
DELIVERY, 

of  chattels,  442-448. 

(See  Sale.) 
stoppage  in  transitu,  when  defeated  by,  482  -  487. 
by  a  depositary  of  the  deposit,  577. 
to  a  common-carrier,  650  -  652. 
notice  of,  654,  669. 

to  what  persons  renders  the  carrier  liable,  650,  651,  655-  657. 
by  a  common-carrier,  658. 
what  constitutes,  658  -  661. 
how  affected  by  usage,  660,  661,  671. 
delay  in,  when  excused,  659,  660. 
by  railroad  carriers,  662-  664,  671. 
by  carriers  by  water,  665  -  670. 

by  bailee,  when  the  ownership  is  in  dispute,  578,  621,  677  -  680. 
DEMAND, 

notes  payable  on,  incidents  of,  217-221. 
of  bills  and  notes,  of  whom,  when,  and  where  to  be  made,  228. 
of  debt  by  pledgee  before  sale  of  the  pledge,  595  -  600. 
DEPOSITUM, 

bailee's  liability  for,  measure  of,  572-577. 
delivery  of,  by  bailee,  577,  578. 
property  of  bailee  in,  nature  of,  578. 
who  are  chargeable  as  depositaries,  579. 
DISSOLUTION, 

of  partnership,  170-173. 

by  assignment  of  a  partner's  interest,  170,  171. 

by  death,  172-173. 

by  civil  incapacity,  172  -  173. 

by  insanity,  172,  173. 

by  a  court  of  equity,  172,  173. 

by  bankruptcy  and  insolvency,  173. 

by  war,  173. 


T66  INDEX. 

DIVORCE, 

for  what  causes  granted,  5GG.    . 

rights  of  the  parties  to,  how  affected  by,  566,  567. 
DORMANT  PARTNER, 

liability  of,  48,  n.  (o),  142. 

when  discovered  after  an  unsatisfied  judgment  against 
ostensible  partner,  12,  n.  {j). 

notice  of  his  withdrawal  not  necessary,  144,  n.  (j). 

respective  rights  of  his  private  and  the  partnership  creditors,  175. 
DOWER, 

in  the  real  estate  of  partnership,  128. 
DRUNKENNESS, 

contracts  made  during,  311. 

discharge  of  a  servant  on  account  of,  521,  n.  {k). 
DURESS, 

contracts,  made  under,  void,  319  -322. 

what  constitutes,  319  -  322. 

by  violence  or  imprisonment,  319. 

by  threats  of  violence  or  imprisonment,  320,  321. 

of  one's  property,  320,  321,  n.  (e). 

contracts  made  under,  may  be  ratified,  322. 

money  paid  under,  recoverable,  322. 


E. 
EMANCIPATION, 

of  slaves,  342-345. 
ENEMIES, 

alien,  cannot  be  partners,  1 73. 
EQUITABLE  DEFENCES, 

to  a  chose  in  action  in  the  hands  of  an  assignee,  198. 

to  a  negotiable  bill  or  note  after  maturity,  213,  214,  217. 
EQUITY, 

contribution  when  enforced  by,  32  -  34. 

sales  by  an  agent  to  himself,  and  pui'chases  of  himself  avoided  by 
court  of,  75. 

resort  to,  when  necessary  to  recover  a  legacy,  107,  n.  (A). 

remedy  of  partners  in,  139,  140. 

dissolution  of  a  partnership,  decreed  by  court  of,  172,  173. 

application  by  court  of,   of  partnership   funds   to  pay  joint  and 
separate  debts,  174-  180. 

governed  by  the  last  settled  account  between  partners,  173. 

rights  of  the  assignee  of  a  chose  in  action  in,  193. 

remedy  of  bailee  in,  when  the  ownership  of  the  thing  bailed  is  dis- 
puted, 578,  621,  679. 

specific  performance  of  a  contract  to  convey  real  estate  enforced 
in,  414. 


INDEX.  767 

EVIDENCE, 

parol,  not  admissible  to  qualify  a  general  release,  1G2,  n.  (s). 

what,  admissible  to  prove  freedom  or  slavery,  329-  332. 

to  prove  incapacity  to  contract,  311,  n.  (n),  313. 

•what,  admissible   to  prove   consideration   of  a  written   contract, 
355,  356. 

of  contract  to  marry,  545. 

of  marriage,  559. 

presumption  of  negligence  of  the  common-carrier  in  case  of  injury 
to  a  passenger,  605. 

testimony  of  the  passenger  admissible  to  prove  the  amount  of  his 
baggage  when  lost  by  the  common-carrier,  722. 
EXCHANGE, 

rates  of,  included  in  the  damages  of  holder  of  bills  of  exchange,  239. 
EXCOMMUNICATION,  349. 
EXCOMMUNICxiTED   PERSONS,  349. 
EXECUTORS  AND  ADMINISTRATORS, 

how  they  act,  107. 

extent  of  their  liability,  107.' 

how  assets  in  their  hands  may  be  reached  by  legatees,  107. 

when  personally  liable  on  their  promises  as  such,  108. 
on  awards,  108,  109. 

rights  of  action  of,  109-111. 

on  what  contracts  of  deceased  they  may  sue  and  be  sued,  110,  111. 

when  their  rights  begin.  111. 

death  and  survivorship  of,  112. 

executor  de  so7i  tort,  112. 

may  indorse  the  note  of  the  testator,  205. 

action  for  breach  of  contract  to  marry  does  not  survive  to,  552,  553. 

of  co-surety,  whether  liable  for  contribution,  33,  n.  (e). 

of  a  joint  party,  liability  of,  28  -  31. 

of  a  deceased  partner  whose  interest  is  continued  in  the  firm,  173, 
n.  (a.) 


FACTOR, 

cannot  delegate  his  authority,  71,  n.  (7). 
his  duty  and  power  to  insure,  73,  n.  (x),  80. 
the  authority  of,  when  irrevocable,  58,  (/(). 
when  a  common-carrier  is  liable  as  such,  684. 
(See  Factors  and  Brokeks.) 
FACTORS  AND  BROKERS, 

Who  is  a  factor  and  lolio  a  broker,  78. 

Of  factors  under  a  commission,  78,  81,  500. 

whether  they  are -liable  as  principals  or  sureties,  78. 

whether  their  contract  is  within  Statute  of  Frauds,  79,  500. 


768  INDEX. 

FACTORS  AND  BROKERS,  continued. 

.  Of  the  duties  and  rights  of  factors  and  brokers,  79  -  85. 

power  to  pledge  the  goods  of  the  principal,  79,  80. 

cannot  barter,  80,  n.  (y). 

bound  to  follow  instructions  and  conform  to  the  usages  of  trade,  80. 

not  bound  to  insure,  80. 

may  bind  the  principal  by  acts  within  the  scope  of  the  agency,  81. 

how  the  principal  may  dispose  of  goods  sent  to  him  by  the  factor 
without  authority,  81. 

may  be  personally  liable  to  principal  when  acting  without  del  cre- 
dere commission,  if  himself  in  default,  or  negligent,  81. 

the  respective  liabilities  of  foreign  and  domestic  factors,  and   of 
their  principals,  81,  82. 

who  are  foreign  factors,  81,  82. 

States  of  the  Union  not  foreign  to  each  other,  82,  n.  {n). 

conflicting  claims  of  principal  and  factor  against  purchasers,  83. 

factor  may  act  in  his  own  name,  but  broker  only  in  principal's,  84. 

factor  has  lien  but  broker  none,  84. 

general  rights  and  duties  of,  84,  85. 

authority  of,  not  revocable  when  coupled  with  an  interest,  85. 
FAILURE, 

of  consideration  total  and  partial,  386-388. 
FELON, 

cannot  be  a  partner,  172. 
FEME  COVERT, 

(See  Makried  Womex.) 
FERRY, 

liability  of  the  owner  of,  C58. 
FERRYMEN, 

liable  as  common-carriers,  645. 
FIXTURES, 

rights  of  landlord  and  tenant  to,  431. 

rights  of  purchaser  to,  609. 
FORBEARANCE, 

when  a  consideration,  365  -  370. 

by  creditor,  effect  of  on  a  guarantor's  liability,  512  -  514. 
FOREIGN  STATES, 

whether  our  States  are  such  as  regards  the  liabihties  of  principals 
for  factors,  82. 

or  as  to  protest  of  bills  of  exchange,  238,  n.  (a). 
FOREIGNERS, 

(See  Aliens.) 
FORWARDING  MERCHANTS, 

liabilities  of,  618  -  621,  652,  653. 
FRAUD, 

of  agent,  liability  of  principal  for,  62,  63. 

of  a  partner,  liability  of  firm  for,  63,  n.  {q). 


INDEX.  769 

FKAUD,  continued. 

of  agent,  unkno-sra  to  the  principal,  vitiates  tlie  agent's  contract,  52. 

effect  of,  in   contract,  ■when  connected  with  inadequacy  of  consi- 
deration, 362, 

effect  of,   in  contract,  ■when   specific   performance    is   sought   in 
equity,  414. 

in  a  sale,  -when  implied  by  the  possession  of  the  vendor,  442. 

in  a  mortgage,  -when  implied  by  the  possession  of  the  mortgagor, 
453,  454. 

of  the  vendor  in  a  sale,  461,  463. 

of  creditor  on  the  surety,  497. 

contracts  in  fraud  of  marriage  settlements,  void,  555. 

marriage  obtained  by,  void,  564,  565. 

of  the  owner  of  goods,  effect  of,  on  the  liability  of  a  common- 
carrier,  719. 
FRAUDS,  STATUTE  OF, 

whether  it  requires  the  consideration  to  be  in  writing,  6. 

proof  of  a  contract,  how  affected  by,  7. 

whether  it  requires   the   agent's  authority  to  be  in  writing,  42, 
43,n.  (y). 

ratification  by  the  principal  of  an  agent's  contract  within,  47. 

how  the  rights  of  an  undisclosed  principal  on  a  written  contract 
made  by  his  agent,  affected  by,  53. 

whether  the  guaranty  of  a  del  credere  factor  is  required  by,  to  be 
in  writing,  79,  500. 

contracts  of  service  within,  -529. 

a  signing  not  essential  to  a  deed  since,  QG,  n.  (gg)- 

agent  for  a  corporation  to  sign  the  memorandum  required  by,  who 
may  be,  120. 

when  the  partnership  agreement:  must  be  in  writing,  131,  n.  (7?i) 

contracts  of  novation,  whether  within,  188,  n.  (/),  191. 

an  entire  promise,  partly  within,  void,  379. 

a  guaranty,  when  within,  497-500. 

contracts  to  marry,  when  within,  546  -  517. 

promises  in  consideration  of  marriage  within,  554. 
FREEDOM, 

action  for,  328-333. 

(See  Slaves.) 

G. 

GIFTS, 

to  a  slave,  337-339. 
GOOD-WILL, 

whether  partnership  property,  130. 
GRACE, 

days  of,  what  are  and  how  counted,  230,  234. 

VOL.   I.  ^^ 


770  INDEX. 

GUAEDIANS, 

Of  the  hinds  of  guardians,  113,  313. 

Of  the  duty  and  power  of  a  guardian,  114  -116. 

have  only  an  authority  and  not  an  interest,  114. 

power  of,  to  convert  the  ward's  property,  114. 

duties,  rights,  and  liabilities  of,  115,  116. 

powers  of,  not  assignable,  197,  n.  (a). 

remedies  of  the  ward,  115. 

when  they  are  personally  liable,  116. 
GUESTS, 

who  are,  628-630. 

rights  of,  623-627,631. 

negligence  of,  good  defence  by  an  innkeeper  for  a  loss  by,  626. 
GUARANTY, 

What  is  a  guaranty,  493  -  495. 

ajjplication  of  the  term,  493. 

not  negotiable,  493. 

how  c(5nstrued,  495. 

rights  and  liabilities  of  guarantor,  495. 

Consideration  of,  366,  n.  (h),  375,  496. 
fraud  in,  497. 

Whether  original  or  collateral,  494,  497  -  500. 

when  within  the  statute  of  frauds,  369,  n.  (J),  497,  498. 

entry  of,  in  seller's  books,  effect  of,  499. 

by  factor  under  a  del  credere  commission,  78,  500. 

Acceptance  of  375,  401,  500-  502. 
notice  of,  501,  502. 

Of  the  change  of  liability,  502-508. 

when  extinguished  by  extension  of  the  guarantor's  liability,  503,  504. 
by  payment  or  novation  of  the  debt,  505,  506. 

of  a  partnership  liability  extinguished  by  change  in  the  members  of 
the  firm,  506,  507. 

continuing  guaranty,  507  -  508. 

How  affected  by  indulgence  to  a  debtor,  509  -  514. 

delay  of  creditor  tb  sue  when  requested  by  surety,  509-512. 

forbearance  by  creditor,  512,  513. 

creditor's  covenant  not  to  sue  for  a  limited  time,  514. 

Of  notice  to  the  guarantor,  514,-  514. 

guarantor  must  have  notice  of  debtor's  failure  to  pay,  514,-514. 

Guaranty  by  one  in  office,  515. 

Revocation  of  guaranty,  516,  517. 

power  of  a  partner  to  bind  the  firm  by  a  guaranty  in  its  name,  161. 


H. 

HIRER  OF  CHATTELS, 

liability  of,  how  measured,  602,  603. 


INDEX.  771 

HIRER  OF  CHATTELS,  continued. 

liability  of,  for  the  negligence  of  bis  servants,  G04,  605. 
for  theft  or  robbery,  606. 

for  slaves  employed,  603,  n.  (?•),  605,  n.  (?•),  608,  n.  [1). 
duty  of,  as  to  the  manner  of  using  the  chattel,  608. 

as  to  accounting  for  the  loss  of  the  chattel,  606. 
qualified  property  of,  in  the  chattel,  609. 
qualified  property  of,  when  terminated,  608,  60D. 
HIRING  OF  CHATTELS,  491,  492. 

{See  Bailment,  and  Hirer  of  Chattels.) 
HIRING  OF  PERSONS,  518-536. 
Servants,  518-532. 
proof  of  term  of  service,  how  aS'ected  by  the  specified  periods  of 

payment,  518,  519. 
liability  of  master  on  an  entire  contract  to  hire,  520,  521,  527. 
servant  on  an  entire  contract  to  serve,  522  -  526. 

how  affected  by  physical  inability,  524. 
infant  on  an  entire  contract  to  serve,  263,  n.  (/),  -  268, 
523,  n.  (I). 
effect  of  misconduct  of  the  servant,  521,  n.  (t),  526. 

recission  of  the  contract  by  mutual  consent,  526. 
medical  attendance  on  servant,  master's  liability  for,  527. 
master  not  liable  for  accident  to  servant,  528. 

unless  he  exposes  the  servant,  527,  528. 
for  injury  by  one  servant  to  another,  528. 
testimonial  of  servant's  character,  master's  obligation  to  furnish,  529. 
mutuality  of  contracts  of  ser^dce,  529. 

contracts  for  service  within  the  statute  of  frauds  if  not  to  be  per- 
formed within  a  year,  -  529. 
hiring  presumed  from  service,  371,  530. 

whether  presumed  from  service  rendered  by  a  child  to  a 
parent,  530,  537,  n.  (u). 
rights  of  a  master  against  a  person  seducing  a  servant  from  his 

employ,  532. 
payment  for  service,  when  presumed}  -532. 
Apprentices,  532-536. 

law  governing  the  relation  of,  how  it  arose,  532,  533. 
liabUity  of,  262,  277,  533. 
duty  of  master  towards,  533,  534. 

liability  of  parties  covenanting  for  good  behavior  of,  534. 
rights  of  master  against  persons  seducing  or  harboring,  535,  536. 
Service  gener ally,  Contracts  for,  537-542. 
implied  promises  of  employer  and  employee,  537,  538. 
service  of  arbitrators,  538. 

attorneys,  538,  539, 
physicians,  539. 
employee's  claim  for  extra  work,  540  -  542. 


772  INDEX. 

HIRING  OF  REAL  PROPERTY, 

(See  Real  Property,  Lease.) 
HUSBAND, 

-when  liable  for  his  wife's  acts  as  agent,  43,  287,  289,  304. 

cannot  sue  jointly  with  wife  for  assault  and  battery,  20. 

(See  Marriage.) 

I. 

ILLEGALITY, 

of  consideration,  365,  380,  382. 
IMPOSSIBLE  CONSIDERATIONS,  -382-385. 
INADEQUACY, 

of  consideration,  362,  363,  414. 
INDORSEE, 

before  maturity,  right  of,  213-  217. 

after  maturity,  214-217. 

when  a  want  of  consideration  is  a  good  defence  in  an  action  by, 
215. 

although  he  has  knowledge  of  defence  may  recover  under  innocent 
prior  party's  title,  213. 

of  a  note  payable  to  bearer  or  Indorsed  in  blank,  218.     , 

of  a  forged  note  or  bill,  218. 

(See  IXDORSEMENT.      BiLLS   AND  NOTES.      InDORSER.) 

INDORSER, 

definition  of,  204,  205. 

of  a  blank  note,  205. 

the  executor  of  a  deceased  payee  may  be,  205. 

who  may  be,  206,  212. 

power  of,  to  restrict  the  indorsement,  -  212. 

when  want  of  consideration  is  a  good  defence  in  an  action  against, 

215,  216. 
when  the  note  is  indorsed  in  part,  218. 
without  recourse,  219. 
of  a  forged  bill  or  note,  220. 
presentment  for  acceptance  necessary  to  charge,  221. 

payment  necessary  to  charge,  223  -  227. 
of  whom,  when,  and  where,  the  demand  should  be  made,  227  -  230. 
notice  to,  of  non-payment,  231  -236. 
when  discharged  by  delay,  235,  236,  237. 
of  a  bill  of  lading,  239,-239. 

(See  Ixdorsemext.     Bills  and  Notes.) 
INDORSEMENT, 

Of  negotiable  hills  and  notes,  202-206. 
general  principles  and  advantages  of,  202  -  204. 
how  made,  204,  205. 
in  blank  and  in  full,  205. 


INDEX.  773 

INDOESEMENT,  continued. 

of  the  note  of  a  testator  may  be  made  by  his  executor,  205. 

liability  of  blank  indorser,  205. 

by  party  not  payee  or  indorsee,  eifect  of,  206. 

an  agent's  authority  to  draw,  not  equivalent  to  aa  authority  to 
indorse,  43,  n.  (o). 

note  payable  to  bearer,  how  transferred,  205,  20G. 

presumption  in  favor  of  the  holder's  title,  206. 

when  party  putting  on  back  of  a  note  is  maker,  when  indorser, 
when  guarantor,  -  206. 

(See  Bills  and  Notes.) 

Of  the  essentials  of  negotiable  hills  and  notes, -206 -211. 

may  be  payable  to  the  maker's  own  order, -206,  207. 

may  by  statute  be  under  seal,  207. 

should  be  signed  by  the  maker  at  the  bottom,  208. 

must  contain  words  importing  a  promise  to  pay,  209,  n.  (j). 

must  be  payable  in  money,  209. 

not  dependent  on  a  contingency,  210. 

consideration  of,  presumed,  211. 

parties  to,  211. 

Of  Indorsement,  211,  212. 

■when  it  passes  the  property'  in  a  bill  or  note,  212. 

who  may  indorse,  212. 

when  the  negotiability  may  be  restrained, -212. 

■when  party  aware  of  defence  by  maker  against  payee,  may  recover 
on  the  strength  of  intermediate  innocent  holder's  title,  213. 

Of  Indorsement  after  maturity,  213-216. 

respective  rights  of  holders  and  makers  before  maturity,  213. 

riaht  of  party  taking  under  suspicious  circumstances,  213,  214. 

equities  between  original  parties  opened  ■when  transferred  after 
maturity,  214. 

only  equities  arising  from  note  itself  let  in,  215. 

consideration  of  bills  and  notes  when  inquirable  into,  215. 

when  the  notes  are  accommodation  notes,  216. 

whether  a  preexisting  debt  is  a  sufficient  consideration  for  a  trans- 
fer, so  as  to  shut  out  equitable  defences,  216,  217. 

Notes  on  Demand,  217  -  221. 

not  entitled  to  days  of  grace,  230. 

■when  overdue,  217,-  217. 

when  bank  checks  are  overdue,  217,  218. 

negotiability'  of  bills  ceases  on  payment,  218. 

indorsement  in  part,  effect  of,  218. 

liability  of  the  holder  transferring  a  forged  note  payable  to  bearer 
218. 

general  liabihty  of  indorser,  how  avoided,  219. 

such  liabiUty  strictly  conditional,  219. 
65* 


774  INDEX. 

INDORSEMENT,  continued. 

liability  of  parties  wlien  the  names  of  previous  parties  were  forged, 

219,  220. 

eflfect  of  payment  in  forged  bills  or  the  bills  of  an  insolvent  bank, 

220,  221. 

Of  Presentment  for  acceptance,  221,  222. 

by  -svhom,  to  whom,  and  at  -what  time,  to  be  made,  221,  222. 

in  case  of  non-acceptance,  when  presentment  must  be  made  to 

another,  238. 
bills  payable  a  certain  time  after  sight  or  after  date,  when  to  be 

presented,  221. 
to  be  made  during  proper  hours,  221. 
what  amounts  to  an  acceptance,  222. 
Of  Presentment  for  Payment,  223  -  228. 
why  necessary  to  hold  the  indorsers,  223. 
when  to  be  made,  224. 
excuses  for  neglect  of,  224-  22G. 
where  to  be  made  when  the  bill  or  note  is  payable  at  a  particular 

place  specified,  226,  227,  228. 
Ofwliom,  and  when,  and  where  the  demand  should  be  made,  228  -  231. 
when  to  be  made,  228,  229. 

effect  of  usage  in  regulating  demand  and  notice,  229. 
days  of  grace,  what  are,  and  what  bills  and  notes  are  entitled  to,  230. 
how  demand  should  be  made,  and  notice  given  when  the  bill  is 

di'awn  in  one  country  and  payable  in  another,  230. 
Of  Notice  of  Non-Payment,  231-236. 
waiver  of,  231,  232,  233. 
excuses  for  neglect  of,  233. 

when,  how,  and  by  whom  it  may  be  given,  233,  235. 
agent  of  holder  treated  as  a  holder  for  purpose  of  giving,  234. 
party  giving  must  be  himself  holder,  or  indorser  fixed,  235,  236. 
when  Sundays  and  holidays  are  excluded  in  the  computation  of 

the  proper  time,  234. 
purpose  of  the  notice,  and  its  form,  235. 

indorser  discharged  by  the  binding  promise  of  the  holder  to  dis- 
charge or  delay  suit  against  the  maker  or  acceptor,  236. 
whether  this  rule  operates  in  the  case  of  A^oluntary  assignments  in 

insolvency  of  the  maker's  or  acceptor's  effects,  236,  237. 
Of  Protest,  23  7. 
required  of  foreign  bills,  237. 

notary's  certificate  not  evidence  of,  in  cases  of  inland  bills,  238. 
what  are  foreign  bills,  238,  n.  («). 
acceptance  supra  protest,  rights  and  liabilities  of  person  making  it, 

237,  238. 
Of  Damages  for  Non-payment  of  Bills,  238. 
Bills  of  Lading,  quasi  negotiable,  239. 
stoppage  in  transitu,  when  defeated  by  indorsement  of,  487-489. 


INDEX.  775 

INDORSEMENT,  continued. 

•what  amounts  to  such  indorsement,  -  239. 

Of  x>ropert)j  passing  icith  the  possession,- 230,  240,  241. 

what  instruments  entitled  to  the  privileges  of  negotiable  bills  and 

notes,  240. 
whether  bonds  in  blank  are  so  or  not,  240. 

respective  rights  of  holder  and  maker  of  lost  bills  and  notes,  240,  24 1 . 
indorsement  of  a  writ  by  an  attorney,  99,  n.  (w). 
INFANTS, 

Incapacity  of,  to  contract,  242-246. 

why  allowed  by  the  law,  242. 

who  are  infants,  242. 

defence  of  incapacity  waived  by  a  new  promise  after  the  disability 

is  removed,  242,  n.  (s),  3C0. 
contracts  of,  when  held  void,  243. 

when  voidable  how  confirmed,  243. 
for  necessaries,  binding,  244. 
cannot  borrow  money,  246. 

what  are  necessaries,  and  how  determined,  245,  246,  259,  260. 
Of  the  obligations  of  parents  in  respect  to  infant  children,  247-260. 
whether  the  father  is  legally  liable  for  the  contracts  of  his  minor 

children  for  necessaries,  247-253. 
rules  detex-mining  his  liability,  253. 
when  a  stranger  may  recover  of  parent  for  necessaries  furnished  to 

his  child,  250,  n.  (p),  254,  392,  n.  (v). 
whether  the  child's  property  can  be  applied  to  its  own  support 

when  the  father  is  able,  256. 
whether  the  mother  is  bound  to  support  her  children,  the  father 

being  dead,  256.        f 
husband  not  bound  to  support  the  children  of  his  wife  by  a  former 

husband,  25  7. 
not  presumed  liable  to  them  for  their  services,  257. 
right  of  the  parent  to  the  earnings  of  the  child,  how  abandoned, 

257,  258. 
whether  the  parent's  liability  for  the  child's  necessaries  ceases  on 

his  relinquishing  all  right  to  his  services,  258. 
common-law  lial^ility  of  parent  ceases  on  his  becoming  of  age,  259. 
statute  liability  of  parents  for  indigent  adidt  children,  and  of  chil- 
dren for  indigent  parents,  259,  2G0. 
liability  of  persons  representing  an  infant  in  a  partnership,  124, 1 25. 
Voidable  contracts  for  necessaries,  260-263. 
contracts  of  an  infant  for  necessaries  inquirable  into,  260. 
only  liable  for  their  fair  value,  260. 
cannot  bind  himself  by  his  contracts  in  trade,  261,  263. 
whether  liable  on  his  covenants  as  an  apprentice,  262,  533. 
may  avoid  his  contracts  of  service,  262,  n.  (e). 
cannot  avoid  contracts  to  do  what  he  is  legally  bound  to  do,  262. 


776  INDEX. 

INFA2sTS,  continued. 

infant  wife  cannot  bar  her  right  to  dower,  2C3. 

Of  the  torts  of  an  infant,  264  -  2G8. 

liable  for  frauds  and  other  torts,  2G4. 

liable  for  falsely  representing  himself  to  be  an  adult,  whereby 
others  are  induced  to  contract  with  him,  2G4,  265. 

whether  goods  sold  to  him,  still  remaining  in  his  possession,  for 
which  he  refuses  payment,  may  be  reclaimed  by  the  vendor, 
266,  267. 

if  he  has  received  goods  and  paid  for  them  he  cannot  recover 
the  money  without  returning  the  goods,  267,  268. 

Of  the  effect  of  an  infant's  avoidance  of  his  contract,  268-269. 

respective  rights  of  an  adult  and  an  infant  in  a  contract,  when  the 
property  bought  or  sold  remains  in  the  possession  of  either  party, 
268. 

whether  an  infant  can  recover  for  the  work  done  on  an  entire  con- 
tract which  he  rescinds,  263,  n.  (f),  268,  523,  n.  (Z). 

when  he  may  disaffirm  a  contract,  243,  268-274,  279. 

Of  ratif  cation,  269-275,  360. 

what  contracts  of  an  infant  are  subject  to,  243, 244,  261,  n.  (?/),  274. 

what  amounts  to,  268,  269,-271,  309,  n.  (j). 

•whether  a  sealed  instrument  may  be  ratified  by  parol,  269,  n.  (y), 
272. 

mere  neglect  to  disaffirm,  with  other  facts,  may  be  equivalent  to,  271. 

mere  acquiescence  in  conveyances  of  real  estate  is  not,  271,  273. 

disaffirmance  by  a  new  conveyance,  273. 

mere  acquiescence  in  purchases  confirms  them,  273,  n.  (i). 

Who  may  take  advantage  of  an  infant's  disalility,  275-277,  544, 
545. 

Of  the  marriage  settlements  of  an  infant,  277,  278. 

Infant's  lialility  toith  respect  to  fixed  property  acquired  hy  his  con- 
tract, 278-282. 

liable  for  burdens  attached  to  property  devolved  on  him  by  mar- 
riage or  descent,  279. 

may  disaffirm  leases  to  him  during  his  minority,  279. 

may  on  reaching  majoritv-  disaffirm  that  disaffirmance,  279. 

not  liable  as  other  persons  on  contracts  which  owe  their  validity  to 
statutes,  281. 

plea  of  infancy,  282. 

rights  of  surety  for,  on  contracts  for  necessaries,  494. 

contractsof,  to  work  for  a  time  certain,  263,  n.  (/_),- 268,  523, n.  (Z). 

contract  of,  to  marry,  276,  544,  545. 

contracts  of  marriage,  563,  564. 
INNKEEPERS,  623-632. 

persons  liable  as  such,  623. 

infants  not  responsible  as,  263. 

liability  of,  how  measured,  624,  625. 


INDEX.  777 

INNKEEPERS,  continued. 

liability  of,  when  discharged  by  the  conduct  of  the  guest,  626  -  627. 
duty  of,  to  receive  guests, -627. 

to  admit  drivers  of  public  coaches, -627. 
persons  entitled  to  the  legal  rights  of  guests,  628-630. 
when  goods  are  within  the  custody  of,  626,  627,  631. 
Hen  of,  632. 
INSANE  PERSONS, 

(See  NoN  Compotes  Mentis.) 
INSOLVENCY, 

of  vendee  in  cases  of  stoppage  in  transitu,  476  -478. 
voluntary  assignments  of  a  maker  of  a  note  in,  effect  of  on  the  lia- 
bility of  indorsers,  236,  237, 

(See  Bankrupts  and  Insolvents.) 
INSURANCE, 

agent  to  subscribe  policies,  how  his  authority  is  implied,  43. 
INTEREST, 

when  agent  is  chargeable  with,  on  balance  in  his  hands,  77. 
when  a  trustee  is  chargeable  with  simple  or  compound,  103. 
when  a  guardian,  115. 
authority  coupled  with,  not  revocable,  61,  62,  85. 

cannot  be  executed  by  an  infant,  94,  n.  (e). 


JOINT  PARTIES, 

Whether  parties  are  joint  or  several,  11  -21. 
presumption  of  law,  as  to,  11. 

as  to  liability,  dependant  on  the  terms  of  the  contract,  1 1 . 
when  both  joint  and  several,  12. 
treated  either  as  joint  as  to  all  of  the  obligors,  or  as 

several  as  to  all,  12. 
cases  of  joint  liability,  of  several  liability,  and  of  joint 

and  several  liability,  classified,  11,  n.  (/). 
unsatisfied  judgment  against  a  debtor,  Avhen  a  bar  to 
an  action  against  his  co-debtor,  1 2,  n.  (J) . 
as  to  right,  not  rendered  several  by  merely  designating  the  share 
of  each,  without  distinct  promises  to  each,  13. 
either  joint  as  to  all  of  the  obligees,  or  several  as  to 

all,  13. 
must  all  join  in  a  suit  on  a  contract,  joint  and  several 
in  its  terms,  to  enforce  a  benefit  accruing  to  only 
one,  13,  14. 
in  general  joint,  when  their  interest  in  the  contract  is 

joint,  and  several  when  that  interest  is  several,  14. 
not  joint  or  several  as  to  the  same  covenant,  at  the 


778  IXDEX. 

JOINT  PARTIES,  continued. 

option  of  the  covenantees,  but  must  sue  jointly  if 
they  can,  14,  and  note  (q). 
whether  an  obligation  or  right  is  joint  or  several,  by  v^hat  rules  to 

be  determined,  14-20. 
dependant  particularly  on  the   entirencss  of  the  consideration, 

14-20. 
obligations  and  rights  belonging  to  each  class  may  co-exist,  20. 
rule  in  cases  of  contracts  applied  to  injuries  received,  20. 
cases  classified  where  it  was  held  that 

a  joint  action  was  properly  brought, 

21-23,  n.  (c). 
a  several  action  should  have  been  joint, 

23-27,  n.  (c). 
a  several  action  was  properly  brought, 

27-30,  n.  (c). 
a  joint  action  should  have  been  seve- 
ral, 30-32,  n.  (c). 
Incidents  of  joinder,  21-31. 
authority  of,  to  bind  each  other,  21. 
accord  by  one,  effect  of,  21. 
release  by  one,  effect  of,  22. 
release  of  one,  effect  of,  23-27. 

will  sometimes  be  only  a  covenant  not  to  sue  that  one,  24. 
same  rules  applied  in  cases  of  torts  as  in  contracts,  25. 
discharge  of  one  by  operation  of  law  does  not  discharge  others, 

25,  26. 
operation  of  release  to  one  may  be  restrained  by  its  terms,  26. 
accord  with  one  to  discharge  others  must  be  complete,  and  amount 

to  satisfaction,  27. 
notice  to  quit  by  one,  433,  n.  (w). 
liabilit)'  of  joint  trustees  or  executors,  27,  28. 
liability  of  surviving  joint  party,  28,  29-31. 
liability  of  the  representatives  of  one  joint  party  to  the  other  and 

to  the  creditor,  28,  31. 
right  of  surviving  joint  obligee,  31. 
Contribution  between,  32-37. 
when  and  on  what  principle  enforced,  32-34. 
by  a  surety  against  the  representatives  of  a  deceased  co-surety, 

33,  n.  (e). 
by  surety  against  co-surety  and  against  principal  for  costs  of  de- 
fending suit,  33,  n.  (/). 
fixed  and  positive  obligation  to  pay,  necessary  to,  33. 
must  not  be  a  liability  as  co-partner,  35. 
how  the  claim  for  is  presented  and  adjusted,  34. 
contract  of,  is  a  sevei-al  contract,  35. 

dates  from  what  time,  35,  36. 


INDEX.  779 

JOINT  PARTIES,  continued. 

right  to,  does  not  exist  between  successive  indorsers,  3G. 

Tvlien  the  right  to  begins,  36. 

none  between  wrongdoers,  37. 

except  where  the  act  is  of  a  doubtful  cha- 
racter, and  done  bondjide,  37, 

controlled  by  circumstances  showing  a  different  understanding,  37. 

enforced  in  some  countries  of  Europe,  but  not  by  the  civil  law,  37. 
JOINT  PURCHASERS, 

notice  to  one  not  notice  to  all,  64,  n.  (u). 
JOINT  STOCK  COMPANIES, 

how  constituted,  121. 

difference  between  and  partnerships,  121,  122. 

power  of  managing  committee,  122. 

power  of  a  member  of,  122. 

what  constitutes  a  member,  122,  123. 

in  what  cases  a  member  can  sue  the  company,  123. 
JUDGMENT, 

against  one  debtor,  when  a  bar  to  an  action  against  his  co-debtor, 
12,n.  (i). 

assignable,  196,  197. 

confession  of  by  an  infant,  void,  243. 


LAND, 

covenants  annexed  to,  109,  199. 

(See  Real  Property.) 
LANDLORD, 

liability  of,  422. 

rights  of  to  away-going  crops,  430. 
to  fixtures,  431. 

(See  Real  Property.    Lease.) 
LEASE, 

hiring  of  real  property  eSected  by,  421. 

description  of  property  in,  what  sufficient,  421. 

liability  of  lessor  incurred  by,  422. 

liability  of  lessee  incurred  by,  423  -426. 

assignment  of,  426. 

forfeiture  of,  426,  427. 

surrender  of,  by  operation  of  law,  429. 

rights  of  lessor  and  lessee  to  away-going  crops  and  fixtures,  430  ■ 
433. 
LEGACIES. 

how  recovered  by  legatees,  107. 

come  peculiarly  under  jurisdiction  of  courts  of  equity,  107. 


780  INDEX. 

LEGACIES,  contmued. 

how  tliey  may  be  enforced  against  the  executor,  107,  108. 
LETTER, 

contract  by,  40C  -408,  440. 
LETTER  OF  CHATTELS, 

rights  of,  602-607. 

when  he  may  repossess  himself  of  the  chattel,  607. 

when  bound  to  repair,  607. 

compensation  of,  609. 

(See  Hirer  of  Chattels.) 
LEX  LOCI, 

the  demand  of  bills  and  notes  and  notice  thereof,  how  affected  by, 
229,  230. 

contract  of  marriage  governed  by,  565. 
LIABILITY, 

of  principal  for  the  acts  of  his  agent,  SB. 

how  incurred,  42 -47. 

extent  of,  49  -  53,  62. 

how  terminated,  58-62. 

of  an  agent,  to  third  persons,  54  -  58. 
to  his  principal,  69-  77. 
{See  Agents.     Attorneys.     Principal.) 

of  a  partner,  when  it  exists,  131  -  138,  146. 

extent  of,  151-168. 

of  dormant  pai-tner,  12,  n.  (j),  48,  n.  (a),  142.  ^ 

(See  Partnership.) 

of  i\iQ parent  for  necessaries  furnished  to  his  child,  247-  257. 

of  the  husband,  for  necessaries  furnished  to  his  wife,  286  -  306. 

of  the  master,  for  his  slave,  334,  335. 

to  an  action,  incurring  of,  a  valid  consideration,  370. 

of  lessor,  422. 

of  lessee  or  tenant,  423  -  428. 


LIEN, 


of  finder  for  his  reward,  580,  n.  Qi). 

of  factor,  80,  84. 

of  partner,  on' the  partnership  property,  174  -  176. 

of  vendor,  441,476,  479. 

of  attorney,  538,  539. 

of  pledgee,  593,  600. 

of  bailee  in  locaiio  operis  faciendi,  617. 

of  innkeeper,  632. 

of  private  carrier,  634,  681. 

of  common-carrier,  681. 

when  the  goods  are  received  from  one  not  the 
owner  or  his  agent,  681  -684. 
abandonment  of,  681,  n.  (a). 


INDEX.  781 

LIMITATIONS,  STATUTE  OF, 

bow  it  affects  contribution  between  parties,  33,  n.  (e),  36,  37. 

promise  to  pay  a  debt  barred  by,  309,  n.  (J),  360. 

debt  barred  by,  not  revived  by  the  promise  of  a  spendthrift  under 
guardianship,  315. 
LIMITED  PARTNERSHIPS, 

how  constituted,  185. 

liabilities  incurred  by,  186. 
LITIGATION, 

prevention  of,  a  valid  consideration,  363  -365. 
LOCATIO  OPERIS  FACIENDI,  610- 632. 
{See  Bailment.) 
LOCATIO  REI, 

(See  Bailment,  and  Hirer  of  Chattels.) 
LOSER  OF  BILLS  OR  NOTES, 

rights  of,  241. 
LOSSES, 

of  partnership,  sharing  of,  141. 
LUNACY, 

of  principal  revokes  the  agent's  authority,  61,  n.  (/). 

of  partner  dissolves  the  partnership,  172,  173. 
LUNATICS, 

incapacity  of,  to  make  a  contract,  312. 


M. 

MAJORITY, 

power  of,  in  a  corporation,  120,-120. 

of  partners,  power  of,  156,  168,  169. 
MANDATUM, 

bailee's  liability  for,  ground  of,  372,  580-585. 
measure  of,  586  -  589. 

distinction  between  mandatary's  liability  ex  contractu  and  ex  de- 
licto, 585,  586. 
MARINERS, 

(See  Seamen.) 
MARRIAGE,  543-568. 

Contracts  to  marry,  543  -  554. 

valid  In  law,  543. 

must  be  reciprocal,  544. 

by  deed,  544. 

of  Infants,  276,  376,  544. 

under  the  age  of  consent,  277. 

proof  of,  545,  546. 

when  within  the  statute  of  frauds,  546,  547. 

without  specification  of  time,  when  to  be  performed,  547. 
VOL.   I.  66 


782  '  INDEX. 

MAKRIAGE,  continued. 

on  condition,  547,  551. 

on  request,  548. 

defences  to,  548-551. 

damages  for  breach  of,  551  -  553. 

whether  seduction  may  enhance,  553. 
Promises  inrelation  to  settlements  or  advances,  555  -  556. 
consideration  of,  554. 
within  the  statute  of  frauds,  554. 
contracts  in  fraud  of,  void,  555. 
Contracts  in  restraint  of  marriage,  556. 
marriage  brocage  contracts,  556. 
Contracts  of  marriage,  556-565. 
what  constitutes  marriage,  556  -  563. 
of  non  compotes  mentis,  void,  563. 
of  infants,  563,  564. 
of  slaves,  illegal,  340,  341. 
obtained  by  fraud,  void,  564,  565. 

a  revocation  of  the  wife's  previous  authority  as  agent,  60,  n.  (i). 
within  the  prohibited  degrees,  548,  563. 
a  valuable  consideration,  357. 
governed  by  the  lex  loci  contractus,  565. 
effect  of,  on  the  rights  of  the  parties,  283,  284. 
Z)iLWce,  566-568. 
for  what  causes  granted,  566. 
eifect  of,  on  the  rights  of  parties  to,  566,  567. 
divorce  a  mensa  et  thoro,  567,  568. 
MARRIAGE  SETTLEMENTS, 
of  an  infant,  277,  278. 
consideration  of,  553. 
within  the  statute  of  frauds,  554. 
contracts  in  fraud  of,  void,  555. 
MARRIED  WOMEN,  CONTRACTS  OF, 

Of  the  general  effect  of  marriage  on  the  rights  of  the  parties,  283, 

284. 
Of  the  contracts  of  made  before  marriage,  284-286. 
may  be  appropriated  by  the  husband  to  his  benefit,  284. 
how  he  may  reduce  her  choses  in  action  into  possession,  285. 
when  husband  and  wife  must  join  in  an  action,  285,  286. 
Of  the  contract  of  a  married  woman  made  during  the  marriage, 

286-306. 
cannot  bind  herself  by  a  contract  during  coverture,  286. 
whether  her  contract  made  during  coverture  may  be  ratified  after 

coverture  has  terminated,  361. 
her  husband  entitled  to  the  benefit  of  her  earnings,  and  gifts  to  her, 

286. 
whether  he  may  adopt  her  executory  contracts,  286,  287. 


INDEX.  783 

MARRIED  WOMEN,  CONTRACTS  OF,  continued. 

when  her  authority  to  act  for  him  may  be  implied,  287. 

must  be  express,  289. 
when  she  binds  him  by  her  contracts  in  trade,  or  her  drawing  cr 

indorsements  of  bills  and  notes,  292. 
husband  not  liable  on  contracts  where  she  is  dealt  with  on  her  own 

account,  288,  289. 
his  liability  for  necessaries  furnished  to  her  during  cohabitation, 
289-291. 
during  sepai'ation,  255,  293,  294. 
when  the  separation  is  occasioned  by  the  adultery  of 

either,  or  both,  295. 
when  he  receives  her  back  after  her  adultery,  296. 

297. 
when  she  leaves  him  without  just  cause,  296. 
after  she  offers  to  return,  296,  297. 
when  the  separation  is  voluntary,  297  -  301,  302. 
his  liability  for  necessaries  furnished  to  a  woman  whom  he  has  held 
out  as  his  wife,  43,  n.  (I),  60,  n.  (i),  294,  u.   (])),  295,  n.  (rj, 
304. 
infant's  liability  for  necessaries  furnished  to  his  wife,  245. 
effect  of  agreements  of  separation  between  husband  and  wife, 

297-303. 
whether  the  husband  is  liable  for  professional  services  of  an  attor- 
ney in  prosecuting  legal  proceedings  against  him  on  account  of 
his  wife,  303. 
illegality  of  marriage,  whether  it  is  a  defence  to  a  suit  against  the 

husband  for  wife's  debt  incurred  before  marriage,  305. 
when  she  is  considered  as  a  feme  sole  during  coverture,  305,  306. 
cannot  indorse  a  note,  212. 

not  barred  of  dower  by  joining,  when  an  infant,  her  husband  in  a 
conveyance,  263. 
MASTER, 

liabilities  of,  for  his  servants,  86  -  93. 
(See  Sekvants.) 
of  a  vessel,  66,  67. 

(See  Shipmasters.) 
and  slave,  relation  of, 

(See  Slaves.) 
and  apprentice,  relation  of, 

(See  Apprentices.) 
MATURITY, 

of  negotiable  paper,  rights  of  holders  of,  before  and  after,  213  -  216, 
217. 
MISTAKE  OF  LAW, 

obligation  acknowledged  under,  not  binding,  363. 


784  INDEX. 

MORTGAGE, 

of  chattels,  452  -  455. 

at  common  law,  453. 

by  statute,  453. 

distinction  between  a  mortgage  and  a  pledge,  452,  n. 

(x.r),595-598. 
possession  by  the  mortgagor,  effect  of,  453. 
of  chattels  to  be  purchased,  453,  454. 
mortgagor's  right  of  possession,   how  acquired,   455, 

rijjht  of  mortgasror  to  assign  his  right,  197. 
MOTHER, 

not  liable  for  the  support  of  her  children  by  a  deceased  husband,  256. 


N. 

NECESSARIES, 

infant's  contracts  for,  binding,  244. 

what  are,  244-246,  261. 

whether  a  father  is  liable  for,  when  furnished  to  his  child,  247  -  255, 

258,  259. 
whether  a  mother  is,  256. 
contracts  of  infants  for,  inquirable  into,  260. 
only  liable  for  their  fair  value,  260. 

husband's  liability  for,  furnished  to  their  children  by  the  wife,  255. 
furnished  to  the  wife,  liability  of  husband  for,  255,  289-304. 
furnished  to  a  woman  cohabited  with  as  wife,  43,  n.  (/),  294,  n.  (j^), 

296,  n.  (v),  304. 
furnished  to  a  lunatic,  his  liability  for,  312. 
furnished  to  a  slave,  liability  of  the  master  for,  336. 
NEGLIGENCE, 

of  a  servant,  master  liable  for  injury  done  to  third  persons  by, 

86-92. 
distinction  between  gross  negligence  and  mala  Jides,  214,  n.  (o), 

571. 
what  degree  of,  renders  a  depositary  liable,  586  -  589. 
a  borrower,  74,  n.  (z),  590. 
a  i^ledgee,  591. 
a  hirer,  602,  603. 
degrees  of,  74,  n.  (c),  570. 

presumption  of,  when  the  hirer  does  not  account  for  the  injury. 
606. 
(See  Bailmext.    Ixxkeeper.     Commox-Carrier.) 
NEGRO, 

presumed  to  be  a  slave,  329,  330. 


-    '  INDEX.  785 

NEW  PARTIES, 

by  novation,  187-191. 

by  assignment,  192-201. 

by  indorsement,  202  -  241. 
NOMINAL  PARTNERS, 

liability  of,  145,  146. 
NON  COMPOTES  MENTIS, 

cannot  marry,  563. 

cannot  contract,  310. 

by  drunkenness,  310,  n.  (m),  311. 

by  lunacy,  312. 

appointment  of  guardians  of,  under  statute,  313,  314. 

finding  of  lunacy  by  a  competent  coui-t,  when  conclusive  proof  of. 
313. 

imbecility  of  intellect  in  a  party  to  a  contract,  314. 
NOTICE, 

by  an  unauthorized  agent,  when  it  may  be  ratified,  45,  n.  (tt). 

of  the  revocation  of  an  agent's  authority,  59. 

to  an  agent  is  notice  to  his  principal,  64. 

when  it  may  be  given,  so  as  to  affect  the  principal,  63,  n.  (s). 

to  the  principal  is  notice  to  the  agent,  66,  n.  (yi/). 

how  made,  so  as  to  affect  a  corporation,  66. 

how  a  purchaser  from  a  partnership  is  affected  by,  129,  130. 

of  a  partner's  withdrawal  from  the  firm,  143,  144,  145. 

to  the  other  partners  of  a  partner's  withdrawal,  168,  n.  (n). 

to  one  partner  affects  the  firm,  163. 
j^  to  one  joint  purchaser,  not  notice  to  the  others,  64,  n.  (u). 

to  a  debtor  of  the  assignment  of  the  debt,  effect  of,  198,  199. 

of  non-payment  of  a  note  or  bill,  232-  237. 

waiver  of,  232. 

excuses  for  neglect  of,  232. 

when,  where,  and  how  given,  233  -  235. 

by  a  parent  of  the  emancipation  of  his  son,  258,  259. 

by  a  husband  of  the  revocation  of  his  wife's  implied  authority,  289. 

of  a  wife's  adultery,  to  a  tradesman  supplying  her  with  necessaries, 
not  necessary,  295,  n.  (r). 

of  a  wife's  separate  allowance,  301,  302. 

of  the  acceptance  of  a  guaranty,  501. 

of  the  default  of  debtor  under  a  guaranty,  514,-514. 

to  a  carrier  necessary  to  stoppage  in  transitu,  45,  n.  (ti),  477. 

to  the  pledgor  of  the  sale  of  the  pledge,  595  -  602. 

to  a  common-carrier  of  the  delivery  of  goods,  654. 

by  a  common-carrier  of  the  arrival  of  goods,  660  -  662. 

by  railroad  companies,  663,  664. 

by  carriers  by  water,  665,  668,  669,  670. 

liability  of  common-carriers,  to  what  extent  limited  by,  707  -  718. 
66* 


786  INDEX. 

NOTICE  TO  QUIT, 

Tvlio  entitled  to,  432, 433. 

sufficiency  of,  433. 

effect  of,  434. 

by  an  unauthorized  agent,  when  it  may  be  ratified,  45,  n.  (tt). 

by  one  partner,  a  valid  notice  for  the  firm,  163. 

by  an  agent  of  an  agent,  must  be  recognized  by  the  principal, 
71,  n.  (g). 
NOVATION, 

defined  and  illustrated,  187,  188. 

■what  is  necessary  to,  188-191. 

old  debt  must  be  absolutely  discharged,  189. 

whether  contracts  of,  are  within  the  statute  of  frauds,  188,  n.  {(),  191. 

whether  an  accepted  order  for  less  than  the  entire  debt  is  a  dis- 
charge of  the  whole,  191,-191. 

guaranty  of  debt  discharged  by,  505,  506. 
NUDUM  PACTUM,  353. 


O. 

OFFERS, 

(See  Assent.) 
OUTLAWS,  348. 
OUTLAWRY, 

consequences  of,  348. 


PARENT, 

whether  liable  for  necessaries  furnished  to  his  child,  247  -256. 

liability  of,  when  the  child  has  sufficient  property  of  its  own,  256. 

right  of,  to  the  custody  and  earnings  of  his  child,  257. 

whether  his  liability  ceases  on  his  relinquishing  all  claim  to  his  ser- 
vices, 258. 

liability  of,  by  statute,  for  his  indigent  adult  children,  259. 
(See  Infants.) 
PAROL  CONTRACTS, 

what  are,  7. 

consideration  of,  how  proved,  354,  355,  356. 
PAROL  EVIDENCE, 

not  admissible  to  qualify  a  general  release,  162,  n.  (s). 

when  admissible  to  prove  or  vary  the  consideration  of  a  written 
contract,  355,  356. 

not  admissible  to  vary  or  add  to  written  warranty,  472. 


INDEX.  787 

PARTIES, 

classification  of,  9,  10. 
{See  Contracts.    Joint  Parties.    Agents.    New  Parties.) 
PARTNERS, 

liability  of  dormant,  on  written  contracts  of  copartners  not  signed 
by  them,  48,  n.  (a), 
after  separate   unsatisfied  judgment  against 
the  ostensible  partner,  12,  n.  {]). 
right  of  surviving,  to  sue  on  paper  of  the  firm,  21,  n.  (c). 
should  sue  jointly,  26,  n.  (c),  27,  n.  (c),  28,  n.  (e). 

(See  Joint  Parties,  passsim.) 
contribution  between,  not  enforced,  32,  n.  (e),  35,  n.  {j). 
power  of,  after  dissolution,  to  indorse  in  the  name  of  the  firm,  44, 
•     n.  (7). 

liability  of,  for  the  frauds  of  each,  63,  n.  (7). 

how  a  contract  under   seal,   made  by  one  partner,  may  be  au- 
thorized or  ratified,  94,  n.  (p). 
one  partner  may  sign  the  firm  name  to  a  note  or  bill,  without  more, 

97,  n.  igg). 
infant,  in  a  firm,  his  liability  on  becoming  of  age,  262. 

(See  Partnership.) 
liability  of  a  common-carrier  for  the  acts  of  his  partners,  686. 
PARTNERSHIP, 

What  constitutes  a  partJiersJiij},  124,  125. 
general,  124. 
special,  124. 
when  commenced,  124,  n.  (a), 
persons  competent  to  enter  into,  124. 
liability  of  persons  representing  infant  partners,  124,  125. 
in  what  it  may  consist,  125.  * 

Of  the  real  estate  of  a  partnership,  125-130. 

rights  of  partners  and  partnership  creditors  in  respect  to,  125,  126, 
128,  129. 
of  personal  representatives  and  heirs,  126,  127. 
of  widow  of  a  partner,  128. 
of  purchasers  of  partnei'ship  property,  128,  129. 
Of  the  good  will,  130. 
whether  partnership  property,  130. 
Of  the  delectus  personarum,  131. 
Hoio  a  partnership  may  he  formed,  131  -  138. 
how  formed  and  proved,  131. 
must  be  for  lawful  purposes,  131. 
contract  to  enter  into  and  renew,  how  determined  and  enforced, 

132,  133. 
shares  in  the  profits,  132,  136,  n.  {10). 
what  constitutes  a,  125,  n.  (b),  132,  n.  {q),  133,  138. 


788  INDEX. 

PARTNERSHIP,  continued. 

what  constitutes  a,  between  partners,  and  between  themselves  and 

third  persons,  133. 
when  the  lender  of  money  is  a  partner,  134. 
when  a  clerk  or  agent  is,  134-137. 

difFei'ence  between  a  partnership  and  a  tenancy  in  common,  138.    ^ 
Of  the  rirjlit  of  action  beticeen  partners,  139,  140. 
when  a  partner  may  sue  at  law,  and  when  he  must  resort  to  equity, 

139,  140,  141. 
one  firm  cannot  sue  another,  some  of  whose  members  are  the  same 

persons,  140. 
Of  the  sharing  of  losses,  141. 

partners  may  make  any  agreement  as  to,  inter  se,  141. 
Of  dormant  and  secret  partners,  142. 
definition  of,  142. 
liabilities  of,  48,  n.  (a),  142,  143. 
Of  retiring  partners,  143  -  145. 
liability  of,  when  an  annuity  is  secured  to  them,  143. 

until  notice,  144. 
what  is  notice,  144,  145. 
Of  nominal  partners,  145,  146. 
liability  of,  145. 

admissions  of,  Avhen  conclusive,  146. 
Where  a  joint  lidbility  is  incurred,  147-  151. 
for  the  stock  purchased  for  the  firm,  147  -  151,  -  152,  157, 164. 
when  the  purchasing  or  borrowing  partner  is  alone  liable,  147,  n. 

(o),  148,  n.  (o),  157,  159. 
Of  the  authority  of  each  partner,  151  - 168. 
how  derived,  151,  167. 
how  measured,  167,  168. 

admissions  of,  to  bind  the  firm  or  prove  its  existence,  152. 
to  indorse  notes  after  dissolution,  44,  n.  (5). 
to  bind  the  firm  for^oods  purchased,  -  152,  153,  160. 
to  sell  or  assign  all  the  partnerseip  property,  154  - 156, 160. 
to  bind  the  firm  by  a  deed,  94,  n.  (/). 
revoked  by  dissent  of  his  copartners,  156. 
to  borrow  money,  157-159. 

to  sue  on  the  firm's  paper  after  decease  of  a  copartner,  21,  n.  (c). 
to  bind  the  firm  for  trust-money  applied  by  him  to  its  use,  158, 

159. 
to  indorse  the  firm's  name  to  a  note  after  dissolution,  44,  n.  (5). 
to  purchase  and  dispose  of  partnership  property,  154,  160. 
to  sign  the  firm's  name  without  more,  97,  n.  (gg)- 
to  render  the  firm  liable  for  his  torts,  160,  161,  n.  (n). 
to  bind  the  firm  by  a  guaranty  in  its  name,  161,  162. 
to  give  a  notice  to  quit,  -  433. 


INDEX.  789 

PARTNERSHIP,  continued. 

to  release  the  debtors  of  the  firm,  162. 

to  bind  the  firm  by  his  signature,  admissions,  and  notice  received, 
14G,  152,  163. 

what  circumstances  sufficient  to  affect  a  person  with  the  liabilities 
of  a  partner,  164,  165,  166,  16  7. 

whether  a  partnership  exists  is  a  question  of  law,  152,  n.  (s),  166, 
n.  (^). 

when  a  new  partner  is  liable  for  debts  of  the  old  firm,  166. 

firm  not  bound  by  a  submission  to  arbitration  by  a  partner  without 
special  authority,  168. 

one  i^artner  cannot  bind  firm  or  transfer  its  property  for  his  own 
debt,  168,  n.  (U-). 

Power  of  a  majority,  156,  168,  169. 

Of  dissolution,  1 70  -  1 73. 

may  take  place  at  the  pleasure  of  each  partner,  1 70. 

whether  a  partnership  for  a  specified  time  Is  dissoluble  at  the  plea- 
sure of  each,  1 70. 

what  circumstances  will  justify  the  Inference  of  an  agreement  to 
form  such  a  partnership,  133,  171. 

dissolution   by  a  partner's  assignment  of  his  interest,  131,   170, 
171,172. 
by  death,  172,-173.  • 
by  civil  Incapacity,  172,  -173. 
by  insanity,  172. 
by  a  court  of  equity,  172,  -173. 
by  bankruptcy  and  insolvency,  *  173. 
by  war,  -  1 73. 

continuance  of  the  firm  after  death  of  a  partner  by  express  agree- 
ment or  provision  In  his  will,  -  173,  and  n.  (o). 

power  of  surviving  partnel's  upon,  -  173. 

settlement  of  accounts  by  a  court  of  equity  upon,  - 173. 

Of  the  rifjlds  of  creditors  in  respect  to  partnership  funds,  174  -  180. 

how  they  must  by  applied,  1 74. 

how  they  may  be  reached  by  a  private  creditor  of  a  partner,  174, 
175,  176. 

the  rights  of  a  creditor  of  a  dormant  partner,  175. 

the  attachable  Interest  of  a  partner,  174,  n.  [g],  176-  179. 

whether  the  sheriff  can  take  possession  of  the  partnership  property 
to  satisfy  a  private  debt,  176  -  179. 

respective  rights  of  the  joint  and  private  creditors  of  a  partner  in 
respect  to  his  private  property,  180. 

partnership  creditors  have  no  preference  as  to  property  bona  fide 
converted  into  private  estate  during  partnership  or  upon  dis- 
solution, - 180. 

guaranty  of  the  debt  of,  how  discharged,  506  -  508. 

Limited  pa7-tne}-shij)s,  185  -  186. 


790  INDEX. 

PARTNERSHIP,  continued. 
how  constituted,  185. 
statute  provisions  relative  to,  186. 
'  liabilities  of  special  partner,  18G. 

PART  OWNERS, 

joint  suits  by,  24,  n.  (c),  30,  31,  n.  (c),  32,  n.  (c). 

(See  Joint  Parties,  passim.) 
of  vessels,  whether  they  can  all  sue  on  a  policy  of  insurance  effect- 
ed in  the  name  of  one,  48,  ii.  (a). 
PASSENGERS, 

payment  of  fare  by,  649. 

liability  of  common-carriers  for,  how  measured,  690,  695. 

gratuitous  passengers,  691  -  695. 
the  baggage  of,  673,  720,  721,  722. 
PAYMENT, 

of  negotiable  paper,  presentment  for,  223-  228. 
demand  of,  228-231. 
notice  of  non-payment,  231  -  236. 
protest  for  non-payment,  237,  238. 
of  another's  debt,  when  the  amount  may  be  recovered  of  the  debtor 

by  the  party  paying,  392-396. 
of  rent,  place  of,  424. 
liability  of  the  lessee  fl^make,  423,  425. 
of  fare  by  a  passenger,  649. 
PECULIUM, 

of  a  slave,  339,  340. 
PERSONAL  PROPERTY,  SALE  OF, 
essentials  of,  435. 

Absolute  sale  of  chattels,  A35-4SD. 
subject-matter  of,  437. 

possibilities,  not  coupled  with  an  interest,  not  salable,  438. 
Price,  and  agreement  of  parties,  439. 
consideration  of,  376. 
The  effect  of  a  sale,  440. 
the  property  passes  by,  440. 
not  until  the  thing  sold  is  identified,  442. 
lien  of  vendor,  441,  476. 
Ofjiossession  and  delivery,  442,  -449. 

sale  without  delivery  avoided  as  to  third  parties  by  fraud,  442. 
constructive  delivery,  443. 

duty  of  vendor  and  vendee  until  delivery,  444  -  447. 
time  and  place  of  delivery  by  vendor,  444,  446. 
of  payment  by  vendee,  448. 
of  payment  In  specific  articles,  448. 
conditional  sales,  449  -451. 
implied  condition  of  payment  of  price,  449. 
express  conditions,  449,-449. 


INDEX.  791 

PERSONAL  PROPERT  SALE  OF,  continued. 
contracts  of  sale  return,  450. 
conditions  of  saUt  auction,  450,  451. 
Mortgages  of  chils,  '452  -  455. 
at  common  law,  d  by  statute,  453. 
distinction    bet-en  a    mortgage    and  a    pledge,    452,    n.  {xx), 

595-598. 
possession  by  tltnortgagor,  effect  of,  453. 
mortgage  of  gw  to  be  purchased,  453,  454. 
mortgagor's  rigof  possession,  how  acquired,  455,  n.  (c). 
Wan-antg  of  cids. 

{See  Warranty.) 
PHYSICIAN, 

mastei-'s  liabil'  for  attendance  of,  on  a  servant,  527. 
compensation'^,  539. 
PLEDGE, 

when  an  ago  has  power  to  make  a,  51,  n.  (g). 

when  a  facte  79,  80. 

pledgee's  liality,  measure  of,  591. 

pr<erty  in  the  pledge,  592. 
usof,  593. 

Ii?ility  to  account  for  the  profits  of,  593. 
linlity  for  the  theft  of,  594. 
difference  ctween  a  pledge  and  a  mortgage,  452,  n.  (xx),  594  - 

599. 
of  a  bill  Grading,  effect  of,  on  the  consignor's  right  of  stoppage  in 

transitions. 
ofstocksJ94-599. 
rights  of'ledgee,  592,  600,  GOl. 
sale  of,  J 2.  ^ 

whethean  implied  warranty  in  a  sale  of,  456,  457,  n.  (g). 
termin;ion  of,  602. 
PLACE, 

of  prcentment  for  payment  of  a  note  or  bill,  225,  228. 
whenpayable  at  a  particular  place,  226. 
of  pnnient  by  tenant,  424. 
of  dlivery  by  vendor,  444,  446. 
'  of  jiyment  by  vendee,  448. 

of  payment  in  specific  articles,  448,  449. 
of  delivery  by  and  to  a  common-carrier. 
•{See  Delivery.) 
POSTMAiTERS, 

liibility  of,  622. 
POWER  OF  ATTORNEY, 

low  made  and  executed,  94,  95. 
commonly  gives  power  of  substitution,  72. 


792  INDEX. 

PRESENTMENT, 

of  negotiable  paper  for  acceptance,  22]|22. 
for  payment,  223,  22 1 
PRESUMPTION, 

of  consideration,  in  negotiable  paper,  20|ll. 

bow  rebutted, -206,  21] 
of  indorsement  of  negotiable  paper  befordaturity,  215,  n.  (h). 
of  hirer's  negligence,  •when  authorized  byk  conduct,  606. 
of  the  negligence  of  the  common-carrier,  ^ase  of  injury  to  a  pas- 
senger, 695. 

PRICE,  1 

lien  of  vendor  for,  440,  441.  1 

time  and  place  of  payment  of,  444,  448.     \ 
PRINCIPAL, 

how  the  liability  of,  for  the  acts  of  a  generand  a  special  agent, 

is  measured,  38-42. 
how  authority  may  be  derived  from,  42  -  44. 
rights  and  liabilities  of,  on  account  of  his  radcation  of  unauthor- 
ized acts,  44-4  7,  69,  72. 
how  authority  derived  from,  to  sign  a  writteinstrument,  must  be 

executed,  47. 
liability  of,  for  the  sales,  pledges,  warranties,hd  representations 

and  misconduct  of  his  agent,  49-52,  62. 

right  of,  to  sue  on  the  contracts  of  bis  agent, 

may  revoke  at  pleasure,  the  authority  of  the  a^t,  unless  coupled 

with  an  interest,  58-61.  « 

death,  insanity,   or  bankruptcy   of,  revokes  th  authority  of  the 

agent,  60. 
how  affected  by  notice  to  his  agent,  64. 

or  by  misconduct  of,  62. 
rights  of,  not  determinable  in  an  action  against  hi^o-ent,  68. 
as  regards  his  agent,  69-77. 
to  a  strict  conformity  to  his  instructions,  6, 
to  reject  unauthorized  acts,  69,  70. 
to  authorize  the  appointment  of  sub-agentS71,  72. 
to  the  care,  diligence,  ^nd  skill  of  his  agentj73. 
to  indemnity  for  his  misconduct,  74. 
to  reject  the   agent's  sales   to  himself  and  purchases  of 

himself,  for  the  principal,  75. 
to  an  account,  76. 
to  his  property  when  mixed  by  the  agent  wik  his  own, 

I'-  .  \ 

to  interest  on  balances  in  the  agent's  hands,  77^ 

"when  his  agent  is  a  factor  or  broker,  78  -  85.     \ 

(See  Agents.     Attokxeys.    Factors   and   Brokers.     Seivants.) 

PROFITS, 

partnership  in,  125. 


,     INDEX.  793 

PROFITS,  continued. 

when  sharing  in,  constitutes  a  partner,  132-  138. 
PROMISE, 

use  of  the  term,  6. 
PROMISE  FOR  A  PROMISE, 

a  valid  consideration,  373-376. 
PROMISSORY  NOTE, 

(See  Bills  and  Notes.    Indorsement.) 
PROTEST, 

for  non-acceptance  or  non-payment  of  bills,  237,  238. 
PUBLIC  ENEMIES, 

common-carrier  excused  for  losses  by,  638. 
PUBLIC  OFFICERS, 

liability  of,  on  their  contracts  for  the  public,  104-106.   . 

R. 

RAILROAD  COMPANIES, 

■when  liable  as  common-carriers,  648,  662-664,  673. 

liability  of,  for  passengers,  700,  n.  (<). 

bonds  of,  assignable,  240. 
RATIFICATION, 

Of  an  agent's  authority,  44  -47. 
'expressly  and  by  implication,  44,  45,  47,  n.  (w). 

of  part  of  the  agency  confirms  the  -whole,  46. 

once  made  cannot  be  disaffirmed,  46  n.  (u). 

by  principal  unknown  when  the  contract  was  made,  44,  n.  {t). 

oral,  of  a  parol  contract,  sufficient,  44. 

parol,  of  a  deed,  not  sufficient,  47,  94,  n.  (/j. 

unless  the  seal  was  unnecessary  to  its  validity,  47. 

in  what  cases  a  principal  may  adopt  the  acts  of  a  person  who  as- 
sumes to  act  for  him,  45,  n.  (tt). 

ofa  trespass,  45,  n.  (tt),  46  n.  (tt),  69. 

to  bind  the  principal  must  be  with  a  full  knowledge  of  the  facts. 
46,  n.  (u). 

does  not  take  away  th^  liability  of  an  agent  for  unauthorized  acts, 
47. 

by  a  state,  47,  n.  (?<»?/). 

of  the  appointment  of  a  sub-agent,  72,  73. 

of  an  attorney's  execution  of  his  power  by  a  sfealed  instrument, 
when  valid,  47,  94,  n.  (f). 

by  a  corporation  of  an  act  done  in  its  behalf,  118. 

by  an  administrator  of  an  act  of  the  agent,  in  ignorance  of  the  prin- 
cipal's death,  111.  • 

Of  a  partner's  authority,  * 

to  contract  for  the  firm,  156. 

to  make  a  sealed  instrument,  94,  n.  (/). 
VOL.  I.  67 


794  INDEX. 

RATIFICATION,  continued. 

(See  Agent.    Factors  and  Brokers.    Pautnership.     Principal  ) 
Of  an  infant's  contracts,  243,  2G9  -  275. 
■what  contracts  of  an  infant  are  subject  to,  243,  244,  2G1,  n.  (>/). 

274,  275. 
what  amounts  to,  2G8,  269. 

■whether  he  may  ratify  a  scaled  instrument  by  parol,  269,  n.  (?/) ,  272. 
mere  neglect  to  disaffirm,  with  other  facts,  may  amount  to,  271. 
mere  acquiescence  in  purchases  confirms  them,  273,  n.  (i). 
mere  acquiescence  in  conveyances  of  real  estate  docs  not,  271,  273, 

274. 
disaffirmance  by  a  new  conveyance,  273. 
of  a  wife's  contract  by  her  husband,  286,  289,  292. 
REAL  PROPERTY, 

liability  of  the  owners  of,  for  injuries  committed  on,  -  92. 
of  a  partnership,  incidents  and  liabilities  of,  125-  130. 
law  relative  to  dormant  partners  does  not  extend  to  sales  and  pur- 
chases of,  142,  n.  (f). 
of  a  partnership,  cannot  be  assigned  or  sold  by  one  partner  without 

special  authority,  155,  n.  (w),  160,  n.  (/). 
covenants  affecting,  when  assignable,  199  -201. 
infant's  power  to  bind  himself  by  sale  or  purchase  of,  243,  271. 
infant's  liability  with  respect  to,  when  acquired  by  contract,  278- 

282. 
jmrchase  and  sale  of,  414-420. 

specific  performance  of  contract  relative  to,  when  enforced,  414. 
inadequacy  of  consideration,  414. 
no  implied  warranty  in  the  sale  of,  457,  n.  (g),  4  71. 
sales  of,  at  auction,  effect  of  misdescription,  415-417,  451. 
in  separate  lots,  417. 
when  avoided  by  by-bidding,  417,  418. 
retraction  of  bids,  403,  418. 
powers  and  liabilities  of  auctioneer,  418  -  420. 
Hiring  of,  421  -  ASi. 
effected  by  a  lease,  421. 
what  passes  by  the  description  in  a  lease,  421. 
Of  the  general  Uahilities  of  the  lessdr,  422,  423. 
his  obligation  to  renew,  422. 
his  obligation  to  repair,  422. 

effect  of  neglect  to  fulfil  his  obligation  on  the  liability  of  lessee,  423. 
Of  the  general  liahility  and  ohligaiion  of  the  tenant,  423  -428. 
to  pay  rent,  423,  425. 
to  pay  the  taxes,  423. 
payment  of  rent,  time,  and  place  of,  424. 
•    to  repair,  424,  425. 

covenant  by,  not  to  assign  or  underlet,  426. 
forfeiture  by,  how  caused  and  waived,  426,  427. 


■  INDEX. 

REAL  PEOPERTY,  continued. 

Of  the  general  liability  and  obligation  of  the  tenant,  continued. 

may  not  dispute  his  landlord's  title,  428. 

Of  surrender  of  leases  by  operation  of  law,  429,  430. 

Of  away-going  crops,  rights  of  tenant,  430. 

Of  fixtures,  431,-432,  n. 

Of  notice  to  quit,  432  -434. 

Tvho  entitled  to,  432,  -  433. 

■what  is  sufficient,  -433. 

effect  of,  434. 
RECEIPT, 

of  joint  trustees  and  co-executors,  when  it  may  be  explained,  27, 
28. 

of  agent  is  receipt  of  principal,  42,  n.  (J).  ' 

RELEASE, 

of  the  interest  of  a  Avitness  cannot  be  made  by  an  attorney,  by  vir- 
tue of  his  oral  authority,  to  appear  in  a  cause,  97,  n.  {/<). 

by'  or  to  one  partner  is  a  release  by  or  of  all,  1G2. 

by  an  infant,  void,  243. 

by  or  of  one  of  joint  parties,  22  -  26. 

by  a  surety,  35. 
REMEDY  FOR  BREACH  OF  CONTRACT, 

■wholly  pecuniary  in  courts  of  la'w,  412,  413. 

not  so  in  equity,  413. 
RENT, 

obH2;ation  of  the  lessee  or  tenant  to  pay,  423,  424,  426. 

RETIRING  Partner, 

liabilities  of  until  notice,  143  -  145. 
REVOCATION, 

of  an  agent's  authority, 

may  be  at  the  pleasure  of  the  principal,  unless  coupled  ■with  an  in- 
terest, or  given  for  valuable  consideration,  58,  85. 
■whether  that  of  factor  is  revocable  after  advances  by  him,  59,  n. 

(h),  85. 
until  notice  of,  continues  as  regards  third  persons,  42,  59  -  60  * 
occasioned  by  death  unless  coupled  with  an  interest,  61. 
by  lunacy,  61,  n.  (I). 
by  bankruptcy,  61,  n.  (/). 
by  marriage  of  feme  sole,  61,  n.  (/). 
of  a  partner's  authority, 
by  dissent  of  his  copartners,  156,  168,  169. 
by  dissolution  of  the  firm,  169  -  173. 
by  assignment  of  a  partner's  interest,  171. 
by  death,  172,  -  173. 
by  civil  incapacity,  172. 
by  insanity,  172,  173. 


796  INDEX. 

REVOCATION,  continued. 

of  a  partner s  authority,  continued. 
by  a  court  of  equity,  -  17D. 
by  bankruptcy  and  insolvency,  *  173. 
by  -war,  - 1 73. 
of  guaranty,  516. 


S. 
SALE, 

of  real  property,  when  enforced  in  equity,  414. 

no  implied  warranty  in,  457,  n.  (g),  471. 
at  auction,  effect  of  misdescription,  415-417,  451. 
in  separate  lots,  417. 
■when  avoided  by  by-bidding,  417. 
powers  and  liabilities  of  auctioneer, 

418-420. 
conditions  of  sale,  450. 
of  personal  property,  435  -  455. 

essentials  of,  435. 

absolute  sale  of,  436-439. 

subject-matter  of,  438. 

possibilities  not  coupled  with  an  interest  not 

subjects  of,  438. 
price  and  agreement  of  parties,  439,  440. 
consideration  of,  376. 
effect  of,  440-441. 

the  property  in  the  chattel  passes  by,  440. 
not  until  the  thing  sold  is  identified,  -441. 
lien  of  vendor,  441,  449. 
possession  and  delivery  of,  441  -448. 
sale  without  delivery  avoided  as  to  third  par- 
ties by  fraud,  442. 
constructive  delivery,  443. 
duty  of  vendor  and  vendee  until  delivery, 
444-447.  • 

time  and  place  of  delivery  by  vendor,  444, 
446. 
of  payment  by  vendee,  447, 
448. 

of  payment  in  specific  arti- 
cles, 448. 
conditional,  449-451. 
imjilied  condition  of  payment  of  price,  449. 
express  conditions,  -  449. 
contracts  of  sale  or  return,  450. 


INDEX.  797 

SALE,  continued. 

of  personal  property,  continued. 

conditions  of  sale  at  auction,  450,  451. 
mortgages  of,  452-455. 
{See  Personai.  Pkoperty.) 
warranty  of,  456  -  475. 
(See  Warranty.) 

of  a  pledge,  by  a  pledgee,  G02. 
agent's  power  of,  how  limited,  50,  51. 
(See  Stoppage  in  Transitu.) 
SEALED  INSTRUMENT, 

(See  Specialty.     Deed.) 
SEAMEN, 

contracts  in  derogation  of  their  general  rights,  when  held  void, 

316,  317.  , 
forfeiture  of  the  wages  of,  318,  n.  (a). 
SECRET  PARTNER,  142. 

(See  Dormant  Partner.) 
SERVANTS, 

may  be  appointed  by  aft  agent,  71,  n.  (7). 
what  constitutes  the  relation  of  master  and  servant,  86. 
master's  responsibility  for  the  servant's  acts,  how  measured,  87. 
when  he  is  responsible  for  the  servant's  torts,  87,  n.  (aa). 
liability  of  employer  for  the  torts  of  contractors,  sub-contractors, 

and  their  servants,  88-92. 
when  the  owners  of  real  estate  arc  liable  for  injuries  committed  on 

it  by  others,  -  92,  and  n.  (d). 
master  not  answerable  to  one  servant  for  injuries  received  from 

another,  engaged  in  his  service,  528. 
exception  in  the  hire  of  slaves,  335. 
contract  of  service  within  the  statute  of  frauds,  -529. 
(See  Hiring  of  Persons.) 
SERVANT  BY  INDENTURE, 
not  assignable,  196,  197. 
SET-OFF, 

what  allowed,  in  the  case  of  negotiable  paper,  214,  215. 
SHIPMASTERS, 

powers  of,  66,  6  7. 
SHIPS,  OWNERS  OF, 

when  liable  as  common-carriers,  646,  647,  657. 
agents  of,  to  receive  goods,  651. 
SIGNATURE, 

of  an  agent,  Avhat  sufficient  to  make  the  principal  a  party,  47-49. 
of  a  partner,  for  the  firm,  to  a  sealed  instrument,  94,  n.  (f). 
of  an  attorney,  how  it  must  be  made,  94  -  96,  118,  119. 
of  an  auctioneer,  whether  it  must  appear,  96,  n.  (^/f/). 
•  of  a  trustee,  when  it  binds  himself,  102. 

67* 


798  INDEX. 

SIGNATURE,  continued. 

of  executors  and  administrators,  when  it  renders  them  personallj' 
liable,  108. 
•    of  a  pai'tncr,  when  it  binds  the  firm,  163. 

of  an  indorser  to  a  bill  or  note,  204. 

of  the  maker,  208. 
SLAVES, 

Nature  of  the  relation  of  master  and  slave,  326  -  328. 

peculiar  in  this  country,  326. 

maxim  that  the  law  favors  liberty,  how  to  be  understood,  327. 

no  intermediate  state  between  freedom  and  slavery  allowed,  327. 

maxim,  partus  sequitur  ventrem,  328. 

Action  for  freedom,  328  -  333. 

in  what  form  it  may  be  prosecuted,  328. 

proceedings  in,  pending  the  trial,  328. 

presumption  of  freedom  or  slavery,  how  it  may  arise  or  be  over- 
come in  either  case,  329,  330. 

presumption  against  every  negro  that  he  is  a  slave,  330. 

evidence  admissible  to  prove  freedom  or  slavery,  331,  332. 

damages  recoverable  by  plaintiff  on  proof  of  freedom,  332,  333. 

The  capacity  of  slaves  to  contract,  333. 

how  regarded  by  the  law,  333. 

injuries  to  their  persons,  llbw  punished,  333,  334. 

death  of,  by  excessive  whipping,  murder,  334. 

Liability  of  the  master  for  the  slave,  334,  335. 
for  his  torts,  334-335. 
for  necessaries  furnished  to  him,  336. 
for  medical  attendance  on  him,  336,  527, 
n.  {w). 

master  not  bound  by  his  contracts  with  his  slave,  336. 

and  generally  not  even  for  emancipation,  339. 

Of  contracts  between  a  slave  and  one  not  his  master,  336,  337. 

generally  prohibited  by  statute,  336. 

whether  the  contract  of  a  slave  may  be  ratified  by  his  master, 
336,  337. 

■Of  gifts  to  a  slave,  337-339. 

contracts  of  emancipation  between  master  and  slave,  and  between 
master  and  third  persons,  338,  339. 

The peculiurn,  339,  340. 

Of  the  marriage  of  slaves,  340,  341. 

not  legal,  340. 

effect  of  marriage  during  slavery  on  the  status  of  emancipated 
slaves,  341,  n.  («). 

Emancipation  of,  342-345. 

how  effected,  342. 

taking  effect  on  a  contingency,  342. 

conditions  subsequent  to,  void,  343.  ^ 


INDEX.  '      799 

SLAVES,  continued. 

Emancipation  of,  continued. 

the  rights  of  creditors,  how  effected  by,  343. 
restrictions  on,  344. 

validity  of,  dependent  on  the  laws  of  the  State  where  the  emanci- 
pated slaves  reside,  345. 
Of  slaves  for  a  limited  time,  or  statu-liberi,  345  -  347. 
capacity  to  take  by  testament  or  gift,  346. 
a  court  of  equity  will  not  forbid  their  removal  from  the  State  by 

the  master,  34G. 
condition  of  the  children  of  a  statu-liberi,  346,  347. 
Warranty  in  the  sale  of,  459,  n.  (i). 

responsibility  of  the  hirer  of,  603  -  605,  n.  (r),  608,  n.  (&). 
liability  of  common-carriers,  for  the  transportation  of,  692,  n.  {7n), 
694,  n.  (?«m). 
SPECIALTY,  CONTRACTS  BY, 
definition  of,  7. 
consideration  of,  354. 

how  proved  and  varied  by  parol  evidence,  355,  3oG. 
must  be  sued  on  in  the  name  of  a  party  to,  391. 
(^See  Deed.) 
SPECIFIC  ARTICLES, 

bills  and  notes  payable  in,  not  negotiable,  209. 
payment  in,  time  and  place  of,  448. 
SPECIFIC  PERFORMANCE, 

of  a  contract,  when  enforced  by  the  common  law,  412,  413. 
of  a  contract  relative  to  real  estate,  414. 
SPENDTHRIFTS, 

under  guardianship,  by  statute,  disability  of,  314,  315. 
STAGE  COACHES, 

liability  of  owners  of,  as  common-carriers  of  goods,  643,  656. 
for  baggage  of  passengers,  673. 
STOPPAGE  IN  TRANSITU, 

right  of,  defined,  476,  481. 

created  by  the  insolvency  of  vendee,  476,  477,  478. 
notice  of,  to  whom  to  be  given,  4  77,  478. 
effect  of,  479,  480,  481. 
to  whom  the  right  of  belongs,  481,  482. 
right  of,  defeated  by  delivery  to  the  consignee,  483  -  487. 

by  indorsement  of  the  bill  of  lading  by  consignee, 
487-489. 
effect  of,  with  consent  of  the  consignee  or  buyer,  490. 
by  an  unauthorized  agent,  when  it  may  be  ratified,  45,  n.  Ql). 
SUB-AGENT, 

notice  to,  is  notice  to  principal,  64,  n.  (w). 
when  one  may  be  appointed  by  an  agent,  71,  72. 


800  INDEX. 

SUB-AGENT,  continued. 

whose  agent  the  substitute  is,  72,  77. 

to  whom  liable  to  account,  76. 
SUBJECT-MATTER, 

of  contracts,  411  -  414. 
SUBSCRIPTION  AND  CONTRIBUTION, 

a  valid  consideration,  377-379. 
SUNDAY, 

excluded  in  the  computation  of  time  for  the  demand  of  bills  and 
notes,  and  notice  thereof,  234. 
SURETIES, 

contribution  between,  32-37. 

i-epresentatives  of  deceased  surety  liable  for,  33,  n.  (e). 
(^See  Contribution.    Joixt  Parties.) 

del  credere  factor  liable  as  surety,  78. 

rights  of,  against  the  i^rincipal,  on  payment  of  the  debt,  393,  394. 

for  the  payment  of  a  debt, 

{See  Guaranty  and  Suretysuip.) 
SURETYSHIP, 

{See  Guaranty  and  Suretyship.) 
SURRENDER, 

of  leases  by  operation  of  law,  429. 

T. 
TENANT, 

liability  of,  to  pay  rent  and  taxes,  422-426. 
to  repair,  424. 

on  his  covenant  not  to  assign  or  underlet,  426. 
forfeiture  by,  how  caused  and  waived,  426,  427. 
surrender  by,  429. 
right  of,  to  away-going  crops,  430. 
to  fixtures,  431. 
to  notice  to  quit,  432  -  434. 

{See  Real  Property.    Lease.) 
TENANTS  IN  COMMON, 

joint  suits  by,  29,  n.  (c),  31,  n.  (c). 

{See  Joint  V ahiiks,  ^mssbn.) 
diflerence  between,  and  partners,  138,  147-151. 
TENDER, 

to  agent  is  tender  to  the  principal,  42,  n.  {I). 

by  the  lessee  of  rent,  424. 

of  freight-money  to  a  common-carrier,  649. 


TIME, 


when  notes  on  demand  become  overdue,  -  217  -  219. 

of  presentment  of  bills  for  acceptance,  221. 

of  presentment  of  negotiable  paper  for  payment,  223,  224. 


INDEX.  '  801 

TIME,  continued. 

of  forbearance,  as  a  consideration,  366,  -367. 

offers  on,  acceptance  of,  (See  Assent),  403  -  408. 

of  delivery  by  vendor,  444,  446. 

of  payment  by  vendee,  447,  448. 

of  the  consideration  of  a  contract,  391  -  398. 
TITLE, 

assignment  of  covenants  for,  199,  200. 

of  holder  of  negotiable  paper,  how  impeached,  -  206,  211,  213. 
TORTS, 

of  agent,  ratification  of  by  principal,  45,  n.  (tt),  47,  n.  {icy)- 

of  servant,  responsibility  of  master  for,  86-  92. 

of  partner,  responsibility  of  his  copartners  for,  160. 

of  infants,  their  liability  for,  264-267. 

of  slaves,  liability  of  the  master  for,  334,  335. 
TRADE  MARKS, 

right  of  aliens  to  protection  in  the  use  of,  324. 
TRANSFER, 

of  bills  and  notes, 

(See  Indorsement.) 
TRUSTEES, 

Origin  of  trusts,  100. 

how  administered,  100. 

Classification  of  trusts,  101,  102. 

simple  and  special,  101. 

ministerial  and  discretionary,  101. 

with  a  power  annexed,  and  mixture  of  trust  and  power,  101. 

private  and  public,  101. 

Private  trustees,  102  -  104. 

who  are,  102. 

estate  of,  102. 

when  personally  bound  by  their  contracts  as  trustees,  102. 

when  chargeable  with  simple  or  compound  interest,  103. 

liability  of  joint,  for  each  other,  27,  28. 

cannot  buy  the  trust  property  for  themselves,  or  purchase  their  own 
for  the  cestui  que  trust,  75,  104. 

PuUic  trustees,  104-106. 

ordinarily  not  personally  responsible  for  their   contracts   for   the 
public,  104. 

when  personally  responsible,  105,  106. 

guardians  are  such,  113. 
TRUST  AND  CONFIDENCE, 

a  valid  consideration,  372. 

U. 

USAGE, 

effect  of  in  determining  the  authority  of  an  agent,  39,  52. 


802  INDEX. 

USAGE,  continued. 

will  riot  excuse  disobedience  by  an  agent  to  positive  instructions  by 

his  principal,  G9. 
may  justify  an  agent  in  appointing  a  sub-agent,  72. 
sometimes  defined  by  law,  73. 
factor  must  conform  to  usages  of  trade,  80. 
effect  of,  in  regulating  demand  of  bills  and  notes,  and  notice  of 

non-payment,  229. 
effect  of,  in  relation  to  bank  cliecks  and  discount  of  notes  by  banks, 

229. 
delivery  to  a  common-carrier,  liow  affected  by,  G54. 
delivery  by  a  common-carrier,  how  affected  by,  661,  663,  665  -  670. 
USURY, 

lender  on,  when  a  partner,  134,  143,  n.  (i). 


VENDOR, 
VENDEE, 


V. 

{See   Sale,  Real  Peoperty,  &c.) 
{See   Sale,  Real  Property,  &c.) 

W. 

WAIVER, 

of  demand  of  a  note  or  bill,  225. 
of  a  right  of  action,  a  valid  consideration,  369. 
of  forfeiture,  by  the  lessor,  427. 
of  a  breach  of  warranty,  475,  -475. 
WAR, 

dissolves  partnership,  the  members  of  which  are  of  hostile  nations, 

-173. 
excuses  neglect  of  notice  of  non-payment  of  note,  233,  n.  (/j). 
WARD, 

{See  Guardian.) 
WAREHOUSE-MEN, 

liability  of,  how  measured,  618. 

when  extended  to  that  of  a  common-carrier,  618-620. 
when  incurred,  620. 
delivery  by,  when  the  title  is  in  dispute,  621. 
when  the  common-carrier  is  liable  as  such,  671,  674,  681. 
WARRANT  OF  ATTORNEY, 

to  confess  judgment,  not  revocable,  62,  n.  (in). 

need  not  be  imder  seal,  94,  n.  (/). 
by  an  infant  authorizing  a  conveyance,  void,  243. 
WARRANTY, 

kinds  of,  456. 

implied,  of  title  to  goods  in  vendor's  possession,  456-459. 
none  of  merchantable  quality,  467. 


INDEX.  803 

WARRANTY,  continued. 
Express,  459  -475. 
construction  of,  459. 

general,  whether  it  covers  obvious  defects,  459,  n.  {i). 
of  quality  must  be  express,  460. 
"what  amounts  to,  461  -465. 

implied,  when  the  goods  are  not  examined  by  vendee,  4G5,  466. 
when  sold  by  sample,  467,  468. 
when  ordered  for  a  specific  purpose,  468  -  471. 
in  the  sales  of  provisions,  queer e,  471,  n.  (tv). 
of  the  genuineness  of  a  negotiable  instrument,  220. 
none  where  a  wan-anty  is  refused  or  is  put  in  writincr, 

472. 
none  upon  the  sale  or  leasing  of  real  estate,  457,  n.  (7), 
471. 
in  the  sale  of  ships,  473. 
breach  of,  what  amounts  to,  473,  474. 

remedies  of  vendee,  474,  475. 
how  waived,  475, -475. 
authority  of  an  agent  to  make,  when  it  exists,  52. 
covenants  of,  run  with  the  land,  199,  201. 
WATER,  CARRIERS  BY, 

liability  of,  644  -  647,  657,  665  -  670. 
WHARFINGERS, 

liability  of,  622. 
WIDOW, 

her  dower  in  partnership  property,  128. 

liability  of  infant  widow  for  funeral  expenses  of  her  deceased  hus- 
band, 245,  n.  (i). 
not  liable  for  the  support  of  her  children,  256. 
WIFE, 

agent  of  her  husband,  when,  43,  287,  289,  304. 
{See  Marriage.) 
WORK  AND  LABOR,. 

a  consideration,  371. 

{See  PIiRiNG  OF  Persons.) 
WRITING, 

assignment  of  chose  in  action  need  not  be  in,  197. 
contracts  required  to  be  in,  by  the  statute  of  frauds, 
{See  Frauds,  Statute  of.) 


YEAR, 


Y. 


contract  of  service  not  to  be  performed  within,  must  be  in  writing, 
-529,  -530. 


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